                                                                            FILED
                           NOT FOR PUBLICATION                              MAR 28 2016

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



                            FOR THE NINTH CIRCUIT


LOREN CHRISTOPHER                                No. 13-35033
TARABOCHIA,
                                                 D.C. No. 6:11-cv-00547-TC
              Plaintiff - Appellant,

 v.                                              MEMORANDUM*

CLATSOP COUNTY OREGON; MIKE
SMITH; THOMAS BERGIN; PAUL
TESI,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Oregon
                  Thomas M. Coffin, Magistrate Judge, Presiding

                            Submitted March 11, 2016**
                                Portland, Oregon




        *
             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).
Before: BERZON and WATFORD, Circuit Judges, and WALTER,*** Senior
District Judge.

       Plaintiff Loren Christopher Tarabochia alleged two 42 U.S.C. § 1983 claims

and one breach of contract claim against Clatsop County and three county officials

arising out of his pre-trial detention and subsequent incarceration at Clatsop

County Jail in 2009. We affirm as to the Fourth Amendment claim, and vacate and

remand as to the Eighth Amendment and breach of contract claims.

       1. Tarabochia’s Fourth Amendment claim is barred by issue preclusion. See

Qwest Corp. v. City of Portland, 385 F.3d 1236, 1244 (9th Cir. 2004), overruled on

other grounds by Sprint Telephony PCS, L.P. v. Cty. of San Diego, 543 F.3d 571

(9th Cir. 2008). In Oregon, matters litigated in a criminal proceeding have

preclusive effect in civil cases raising the same issues. Casey v. N.W. Sec. Ins. Co.,

260 Or. 485, 490-92 (1985). Tarabochia distinctly raised the same Gerstein

argument to the state trial court in his motion to dismiss the indictments. By

denying the motion to dismiss, the trial court necessarily rejected that argument. As

the Gerstein issue was thus decided adversely to him, Tarabochia is precluded

from raising it in this suit.




        ***
             The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for the Western District of Louisiana, sitting by designation.
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      2. This court has held that “deprivation of outdoor exercise could constitute

cruel and unusual punishment.” Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994)

(emphasis added). Whether such deprivation satisfies the objective requirement

necessary to state an Eighth Amendment claim, see id., turns on the conditions of

confinement and length of the deprivation. See, e.g., Thomas v. Ponder, 611 F.3d

1144, 1150-52 (9th Cir. 2010); Lopez v. Smith, 203 F.3d 1122, 1133 (9th Cir.

2000) (en banc); May v. Baldwin, 109 F.3d 557, 565-66 (9th Cir. 1997); Keenan v.

Hall, 83 F.3d 1083, 1089-92 (9th Cir. 1996); Allen, 48 F.3d at 1087-88; Toussaint

v. Yockey, 722 F.2d 1490, 1492-93 (9th Cir. 1984); Spain v. Procunier, 600 F.2d

189, 199-200 (9th Cir. 1979).

      The magistrate judge did not consider the total duration of Tarabochia’s

confinement—247 days— when assessing the alleged deprivation. Nor did the

magistrate judge consider how many minutes of outdoor exercise Tarabochia was

able to enjoy on each occasion he was permitted to use the roof. And while the

magistrate judge stated that it was “undisputed” that Tarabochia had daily access to

out-of-cell indoor exercise in day rooms, the record does not establish such an

undisputed fact. Tarabochia submitted evidence that not all jail inmates had access

to day rooms and that, because of overcrowding, there were prisoners living in the

day rooms, leaving very little space for even walking around.


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      The magistrate judge also based his recommendation in part on his finding

that Tarabochia provided no evidence of any medical effects suffered from the

alleged deprivation. A showing of adverse medical effects is only required where

the denial of outdoor exercise is temporary. See Lopez, 203 F.3d at 1133 n.15.

Where a plaintiff “allege[s] a deprivation longer than the one in Allen”—a six-

week period in which the inmate exercised outdoors for 45 minutes per week—“it

qualifies as long term.” Id. Here, Tarabochia alleged a deprivation of about thirty-

five weeks, during which he exercised outside for an average of 25 minutes per

week. Because these time periods exceed the deprivation in Allen, it qualifies as

long term. Tarabochia thus “was not required to show adverse medical effects.” Id.

      As to the subjective requirement necessary to state an Eighth Amendment

claim, see Allen, 48 F.3d at 1087, Defendants knew that the settlement agreement

required them to “provide inmates with regular access to outdoor recreation, unless

an individual poses a security risk.” They also knew, as evidenced by Tarabochia’s

grievance and Tesi’s response, that Tarabochia believed his access was inadequate,

and that they were not providing as much access as they otherwise would have had

there been more staff at the jail. Although Defendants have explained that they

were short staffed by two deputies, that explanation cannot justify any deprivation

as a matter of law. See Allen, 48 F.3d at 1088 (“we cannot accept the defendants’


                                          4
vague reference to logistical problems as necessarily justifying, as a matter of law

at the summary judgment stage, the deprivation that took place here”). The record

does not, for example, specify the total number of Corrections Deputies employed,

their various responsibilities, or the reason more were not available. As the record

now stands, a rational fact-finder could determine that Defendants acted with

deliberate indifference.

      We therefore hold that the district court’s grant of summary judgment in

favor of Defendants on Tarabochia’s Eighth Amendment claim was inappropriate.

We vacate and remand for further proceedings.

      3. The grant of summary judgment in favor of Defendants on Tarabochia’s

breach of contract claim likewise was inappropriate. The release provision in the

settlement agreement does not bar Tarabochia’s claim. A settlement agreement is

subject to ordinary local rules of contract construction and interpretation. See Jeff

D. v. Andrus, 899 F.2d 753, 759 (9th Cir. 1989); Miller v. Fairchild Indus., 797

F.2d 727, 733 (9th Cir. 1986); Ristau v. Wescold, Inc., 318 Or. 383, 387 (1994).

Under Oregon law, when there has been a material breach of contract, the injured

party may rescind the contract and sue for restitution or damages, or, in certain

cases, may seek specific performance. See Mohr v. Lear, 239 Or. 41, 48 (1964). A

party that breaches its obligations under a negotiated settlement agreement,


                                           5
therefore, cannot rely on the agreement’s waiver and release provision to preclude

claims related to the breach. See, e.g., Matter of Marriage of Barrett, 126 Or. App.

62, 68 (1994); Davidson v. Wyatt, 289 Or. 47, 60-61 (1980).

      Finally, Tarabochia is not equitably estopped from asserting a breach of

contract claim. There is no reasonable basis on which to conclude that, by filing

only one grievance and by occasionally declining roof access, he waived the

settlement agreement’s outdoor exercise provision.

      Affirmed in part, and vacated and remanded in part.

      Each party shall bear their own costs on appeal.




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