Richard A. Derevan and Deborah Fabricant, Snell & Wilmer, Irvine, CA, Richard P. Herman, Laguna Beach, CA, and Sanford Jay Rosen, Rosen, Bien & Asaro, San Francisco, CA, for plaintiffs-appellees-cross-appellants.
Holly N. Gallagher, B.C. Barman, County Counsel, Bakersfield, CA, John Hagar, Los Angeles, CA, for defendants-appellants-cross-appellees.
Thomas E. McConnell, Cal. Bd. of Corrections, Sacramento, CA, for amicus curiae Cal. Bd. of Corrections.
Prior report: 45 F.3d 1310.
Before: POOLE, CANBY, and RYMER, Circuit Judges.
ORDER
This panel has voted to deny plaintiffs-appellants-cross appellees' petition for rehearing and to reject the suggestion for rehearing en banc.
The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to hear the matter en banc. Fed.R.App.P. 35.
Plaintiffs-appellants-cross appellees' petition for rehearing is denied and the suggestion for rehearing en banc is rejected.
The opinion filed January 13, 1995 is amended to include the following footnote at the end of the second paragraph of Section I, at page 505 of the slip opinion and 45 F.3d 1310, 1313:
We need not decide here whether, under some circumstances, the "deliberate indifference" standards under the Eighth and Fourteenth Amendments diverge. See Redman v. County of San Diego, 942 F.2d 1435, 1442-43 (9th Cir.1991) (en banc). The plaintiffs did not differentiate between the two standards in their briefs, and emphasized the Eighth Amendment formulation, which we apply in this opinion. We are convinced that any possible divergence would not have affected the outcome of our decision.