                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 05 2010

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




                             FOR THE NINTH CIRCUIT



GREGORY McKINNEY,                                No. 09-17008

               Plaintiff - Appellant,            D.C. No. 1:04-cv-06030-SMM

  v.
                                                 MEMORANDUM *
T. CASEY and S. BUENTIEMPO,

               Defendants - Appellees.



                     Appeal from the United States District Court
                        for the Eastern District of California
                   Stephen M. McNamee, District Judge, Presiding

                           Submitted September 13, 2010 **


Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       California state prisoner Gregory McKinney appeals pro se from the district

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

adequate outdoor exercise. We have jurisdiction under 28 U.S.C. § 1291. We


          *
             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).
review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We

affirm.

      The district court properly granted summary judgment because McKinney

failed to raise a genuine issue of material fact as to whether defendants caused the

alleged denial of exercise. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988)

(an official is liable under section 1983 only “if he does an affirmative act,

participates in another’s affirmative acts, or omits to perform an act which he is

legally required to do that causes the deprivation” of which plaintiff complains)

(citation and internal quotation marks omitted).

      The district court did not abuse its discretion in denying McKinney’s motion

for appointment of counsel because he failed to establish exceptional

circumstances. See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir.

2004) (setting forth standard of review).

      McKinney’s remaining contentions are unpersuasive.

      AFFIRMED.




                                            2                                    09-17008
