                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 7 2014

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



                             FOR THE NINTH CIRCUIT


SALVADOR NICOLA NEGRETE, IV,                     No. 12-17785

               Plaintiff - Appellant,            D.C. No. 3:11-cv-03436-RS

  v.
                                                 MEMORANDUM*
G. D. LEWIS,

               Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Northern District of California
                     Richard Seeborg, District Judge, Presiding

                           Submitted September 23, 2014**

Before:        W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges.

       California state prisoner Salvador Nicola Negrete, IV, appeals pro se from

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

process violations arising out of his two-year placement in the prison’s modified

program. 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 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).
Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013), and we affirm.

      The district court properly granted summary judgment on the basis of

qualified immunity because during his two-year placement in the prison’s modified

program, it would not have been clear to a reasonable prison official in defendant’s

position that the curtailment of certain privileges and services, including exercise

for varying periods of time, in response to repeated incidents of prison violence,

was unconstitutional. See Pearson v. Callahan, 555 U.S. 223, 232 (2009)

(defendants are entitled to qualified immunity where there is no violation of

plaintiff’s constitutional right or the right at issue was not “clearly established”);

see also Noble v. Adams, 646 F.3d 1138, 1148 (9th Cir. 2011) (prison officials

were entitled to qualified immunity because it would not have been clear to a

reasonable officer that the declaration of an emergency, a lockdown, or the

curtailment of the use of the exercise yard for nearly seven months was an

unlawful response to a violent prison riot); Norwood v. Vance, 591 F.3d 1062,

1069 (9th Cir. 2009) (when a prison lockdown is in response to a genuine

emergency, this court “may not lightly second-guess officials’ expert judgments

about when exercise and other programs [can] . . . safely be restored”).

      We do not consider Negrete’s arguments regarding his First and Eighth

Amendment claims and his equal protection claim because they were not


                                            2                                     12-17785
adequately presented to the district court. See Navajo Nation v. U.S. Forest Serv.,

535 F.3d 1058, 1080 (9th Cir. 2008) (en banc) (when the necessary factual

allegations to state a claim are not in the complaint, “raising . . . [these allegations]

in a summary judgment motion is insufficient to present the claim to the district

court”).

      We do not consider Negrete’s arguments regarding leave to amend and the

denial of his motion for reconsideration because they were raised for the first time

in his reply brief. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

      AFFIRMED.




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