                                                                           FILED
                              NOT FOR PUBLICATION                           MAY 25 2012

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



LAWTIS DONALD RHODEN,                            No. 11-15235

                Plaintiff - Appellant,           D.C. No. 1:07-cv-01151-BLW-
                                                 LMB
  v.

STEPHEN W. MAYBERG, Director of                  MEMORANDUM *
The California Dept. of Mental Health; et
al.,

                Defendants - Appellees.



                     Appeal from the United States District Court
                         for the Eastern District of California
                      B. Lynn Winmill, Chief Judge, Presiding **

                               Submitted May 15, 2012 ***

Before:         CANBY, GRABER, and M. SMITH, Circuit Judges.




            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable B. Lynn Winmill, United States Chief Judge for the
District of Idaho, sitting by designation.
       ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Lawtis Donald Rhoden, who is civilly committed in California as a sexually

violent predator, appeals pro se from the district court’s judgment dismissing his

42 U.S.C. § 1983 action alleging defendants violated his Fourteenth Amendment

rights by failing to provide greater access to a smoke-free outdoor exercise area

between 2006 and 2008. We have jurisdiction under 28 U.S.C. § 1291. We review

de novo a district court’s dismissal on qualified immunity grounds. Kwai Fun

Wong v. United States, 373 F.3d 952, 966 n.18 (9th Cir. 2004). We affirm.

      The district court properly dismissed Rhoden’s action after concluding that

defendants were entitled to qualified immunity because the law regarding the right

of civil detainees to regular smoke-free outdoor exercise was not clearly

established. See Hope v. Pelzer, 536 U.S. 730, 739 (2002) (“For a constitutional

right to be clearly established, its contours must be sufficiently clear that a

reasonable official would understand that what he is doing violates that right.”

(internal quotation marks omitted)).

      AFFIRMED.




                                            2                                     11-15235
