The opinion
CLIFTON, Circuit Judge,
dissenting:
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, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 , 129 S.Ct. 808 , 172 L.Ed.2d 565 (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.