FILED
NOT FOR PUBLICATION AUG 03 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD ARTHUR AGUIRRE, No. 14-17060
Plaintiff-Appellant, D.C. No. 1:08-cv-00980-FRZ
v.
MEMORANDUM*
R. LOPEZ, Warden; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Frank R. Zapata, District Judge, Presiding
Submitted July 26, 2016**
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
California state prisoner Richard Arthur Aguirre appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that
defendants violated his Eighth Amendment rights by depriving him of outdoor
exercise. 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 Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004), and we affirm.
The district court properly granted summary judgment on Aguirre’s Eighth
Amendment claim on the basis of qualified immunity because it would not have
been clear to every reasonable official that depriving Aguirre of outdoor exercise in
response to ongoing violence between rival gangs was unconstitutional. See
Ashcroft v. al-Kidd, 563 U.S. 731, 735, 741 (2011) (explaining two-part test for
qualified immunity); see also Norwood v. Vance, 591 F.3d 1062, 1068-70 (9th Cir.
2010) (discussing the application of qualified immunity where prisoners were
deprived of outdoor exercise in response to prison violence).
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
2 14-17060