FILED NOT FOR PUBLICATION DEC 02 2009 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANK MARVIN PHILLIPS, No. 07-36082 Plaintiff - Appellant, D.C. No. CV-01-01252-HA v. MEMORANDUM * LYNN HUST, Defendant - Appellee.

Appeal from the United States District Court for the District of Oregon Ancer L. Haggerty, District Judge, Presiding Before: D.W. NELSON, O’SCANNLAIN, and THOMAS, Circuit Judges.** In light of our concurrently filed opinion in Phillips v. Hust, No. 04-36021, this appeal is DISMISSED as moot.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).