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. 14533 PRINTED FOR ADMINISTRATIVE OFFICE—U.S. COURTS BY THOMSON REUTERS/WEST—SAN FRANCISCO The summary, which does not constitute a part of the opinion of the court, is copyrighted © 2009 Thomson Reuters/West.