Althof v. Hanlin

MEMORANDUM ** 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 Althofs incarceration at the Jail. The district court granted summary judgment on all of Althofs 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 Althofs § 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 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). It is not clearly established that an inmate is entitled to outdoor exercise when he has proven to be violent, and *790 the deprivation of outdoor exercise is in response to the plaintiffs 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 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 Althofs IIED claim, because Althof did not present any evidence of the Defendants’ intent to cause him severe emotional distress. See McGanty v. Staudenraus, 321 Or. 532 , 901 P.2d 841, 849 (1995). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . 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). . Because we affirm on this independent ground, we need not address Hanlin’s potential liability in a supervisory role. . We so conclude, even considering the events that occurred prior to July 8, 2008, the contested statute of limitations cut-off date. 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.