927 F.2d 608
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Douglas Martin DILLMAN, Plaintiff-Appellant,
v.
Dr. Theodore SMITH, et. al., Defendant-Appellee.
No. 88-2858.
United States Court of Appeals, Ninth Circuit.
Feb. 28, 1991.
[VACATED IN PART ON REHEARING FROM, 878 F.2d 1438]
AFFIRMED IN PART, REMANDED IN PART
Before POOLE, REINHARDT and O'SCANNLAIN, Circuit Judges:
ORDER
Appellant's petition for rehearing is granted. We hereby affirm the district court with the exception of its holding for the prison guard defendants. We vacate our previous memorandum disposition filed July 7, 1989, to the extent that it affirmed the district court on this point and remand for an evidentiary hearing on the question whether appellant was prejudiced by the absence of the prison guard defendants at trial. See Fenner v. Dependable Trucking Co., Inc., 716 F.2d 598 (9th Cir.1983). Because the petition for rehearing is granted, the suggestion for rehearing en banc is moot.
AFFIRMED IN PART, REMANDED IN PART.
POOLE, Circuit Judge, Dissenting:
I believe we were on the right track in reaching our original decision to affirm the district court--for reasons set forth therein. I do not find the facts here at all comparable to the situation set forth in Fenner v. Dependable Trucking Co., 716 F.2d 598 (9th Cir.1983), upon which the majority relies. I respectfully dissent.