                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

CHARLES EDWARD BYRD,                  
               Plaintiff-Appellant,
               v.                           No. 07-16640
MARICOPA COUNTY SHERIFF’S                    D.C. No.
                                          CV-04-02701-NVW
DEPARTMENT; JOSEPH M. ARPAIO;
KATHLEEN O’CONNELL; AUSTIN                    ORDER
PETERSON; DURANGO JAIL,
            Defendants-Appellees.
                                      
                    Filed October 6, 2009


                           ORDER

KOZINSKI, Chief Judge:

   Upon the vote of a majority of nonrecused active judges, it
is ordered that this case be reheard en banc pursuant to Circuit
Rule 35-3. The three-judge panel opinion shall not be cited as
precedent by or to any court of the Ninth Circuit.




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