The opinion
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NOT FOR PUBLICATION MAY 28 2014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.