                                                                            FILED
                            NOT FOR PUBLICATION                             AUG 03 2016

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


RICHARD ARTHUR AGUIRRE,                          No.      14-17060

               Plaintiff-Appellant,              D.C. No. 1:08-cv-00980-FRZ

 v.
                                                 MEMORANDUM*
R. LOPEZ, Warden; et al.,

               Defendants-Appellees.


                    Appeal from the United States District Court
                        for the Eastern District of California
                     Frank R. Zapata, District Judge, Presiding

                              Submitted July 26, 2016**

Before:        SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.

      California state prisoner Richard Arthur Aguirre appeals pro se from the

district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that

defendants violated his Eighth Amendment rights by depriving him of outdoor

exercise. We have jurisdiction under 28 U.S.C. § 1291. We review de novo,

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004), and we affirm.

      The district court properly granted summary judgment on Aguirre’s Eighth

Amendment claim on the basis of qualified immunity because it would not have

been clear to every reasonable official that depriving Aguirre of outdoor exercise in

response to ongoing violence between rival gangs was unconstitutional. See

Ashcroft v. al-Kidd, 563 U.S. 731, 735, 741 (2011) (explaining two-part test for

qualified immunity); see also Norwood v. Vance, 591 F.3d 1062, 1068-70 (9th Cir.

2010) (discussing the application of qualified immunity where prisoners were

deprived of outdoor exercise in response to prison violence).

      We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      AFFIRMED.




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