                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 28 2014

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



                            FOR THE NINTH CIRCUIT


TAG EDWARD ALTHOF,                               No. 12-35315

              Plaintiff - Appellant,             D.C. No. 6:10-cv-03060-AA

  v.
                                                 MEMORANDUM*
JOHN HANLIN, Sheriff Douglas County
Oregon; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Ann L. Aiken, Chief District Judge, Presiding

                          Submitted December 17, 2013**
                             San Francisco, California

Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.

       Tag Althof sued Douglas County Jail (“the Jail”) officers John Hanlin, Mike

Root, Tim O’Kelly, and Mason Goodknight (collectively “the Defendants”),

alleging the Defendants had deprived Althof of outdoor exercise during Althof’s

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
incarceration at the Jail. The district court granted summary judgment on all of

Althof’s claims. Althof appeals the disposition of (1) the § 1983 claim based on the

Eighth Amendment, and (2) the intentional infliction of emotional distress

(“IIED”) claim.1 Reviewing de novo, Travelers Cas. & Sur. Co. of Am. v.

Brenneke, 551 F.3d 1132, 1137 (9th Cir. 2009), we affirm.

      The district court properly granted summary judgment on the § 1983 claim.

The Defendants are entitled to qualified immunity on Althof’s § 1983 claim,

because the asserted constitutional right was not clearly established at the time of

the alleged violation.2 See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It is not

clearly established that an inmate is entitled to outdoor exercise when he has

proven to be violent, and the deprivation of outdoor exercise is in response to the

plaintiff’s violence.3 On the contrary, this court has held that even a deprivation of

outdoor exercise “for most of a five-year period of incarceration” did not violate

the Eighth Amendment, when the deprivation was “directly linked to [the


      1
       Althof waived any appeal of his negligence claim by not presenting any
argument or legal authority on it. See Kohler v. Inter-Tel Techs., 244 F.3d 1167,
1182 (9th Cir. 2001).
      2
      Because we affirm on this independent ground, we need not address
Hanlin’s potential liability in a supervisory role.
      3
       We so conclude, even considering the events that occurred prior to July 8,
2008, the contested statute of limitations cut-off date.

                                           2
prisoner’s] own misconduct, which raised serious and legitimate security concerns

within the prison.” LeMaire v. Maass, 12 F.3d 1444, 1457-58 (9th Cir. 1993).

      The district court also did not err in granting summary judgment on Althof’s

IIED claim, because Althof did not present any evidence of the Defendants’ intent

to cause him severe emotional distress. See McGanty v. Staudenraus, 901 P.2d

841, 849 (Or. 1995).

      AFFIRMED.




                                        3
                                                                                  FILED
No. 12-35315, Althof v. Hanlin                                                    MAY 28 2014

                                                                             MOLLY C. DWYER, CLERK
CLIFTON, Circuit Judge, dissenting:                                             U.S. COURT OF APPEALS



      I respectfully dissent. I disagree with the conclusion that the asserted

constitutional right was not clearly established at the time of the alleged violation.

A right is clearly established if it has been found violated “under facts not

distinguishable in a fair way from the facts presented in the case at hand.” Saucier

v. Katz, 533 U.S. 194, 202 (2001), overruled on other grounds by Pearson v.

Callahan, 555 U.S. 223 (2009). I view Allen v. Sakai, 48 F.3d 1082 (9th Cir.

1994), as sufficiently similar to the facts presented in this case. See also Spain v.

Procunier, 600 F.2d 189, 199-200 (9th Cir. 1979). That does not mean that the

plaintiff in this case should or would ultimately prevail, but in my view his claim

should have survived summary judgment.
