                   FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

FRANK MARVIN PHILLIPS,                      No. 04-36021
                Plaintiff-Appellee,             D.C. No.
               v.                          CV-01-01252-ALH
LYNN HUST, Library Staff,                  District of Oregon,
                                                 Portland
            Defendant-Appellant.
                                          ORDER DENYING
                                            PETITION FOR
                                           REHEARING AND
                                            PETITION FOR
                                             REHEARING
                                              EN BANC

                  Filed September 14, 2007

    Before: James R. Browning, Dorothy W. Nelson, and
         Diarmuid F. O’Scannlain, Circuit Judges.

                            Order;
                  Dissent by Judge Kozinski


                           ORDER

   Judge Browning and Judge Nelson have voted to deny the
petition for rehearing and have recommended denying the
petition for rehearing en banc. Judge O’Scannlain has voted
to grant the petition for rehearing and petition for rehearing en
banc.

  The full court was advised of the petition for rehearing en
banc, and a judge requested a vote on whether to rehear the
matter en banc. The case failed to receive a majority of the

                             13569
13570                   PHILLIPS v. HUST
votes of the nonrecused active judges in favor of en banc con-
sideration. Fed. R. App. P. 35.

  The petition for rehearing and the petition for rehearing en
banc are DENIED.



KOZINSKI, Circuit Judge, dissenting from the order denying
the petition for rehearing en banc, joined by O’SCANNLAIN,
KLEINFELD, GOULD, TALLMAN, BYBEE, CALLAHAN,
BEA, M. SMITH and IKUTA, Circuit Judges:

   All I can add to Judge O’Scannlain’s bulls-eye dissent is
my utter astonishment that we’re leaving an opinion on the
books that not only denies the prison librarian qualified
immunity but actually holds her liable. Her transgression?
Failing to help a prisoner bind a brief in a way that’s not even
permitted, and certainly not required, by the Supreme Court’s
rules. It’s perfectly clear that a timely cert. petition, bound or
unbound, would have been accepted under Supreme Court
Rule 39.3. If the prisoner didn’t file it, he has only himself to
blame. How the prison librarian violated any of his rights, let
alone his clearly established rights, is a mystery that repeated
readings of the majority opinion do not dispel. I suspect that
the Justices, who know their precedents and filing procedures
all too well, would not agree with our opinion.
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