Gregory McKinney v. T. Casey , 398 F. App'x 288 ( 2010 )

FILED
NOT FOR PUBLICATION OCT 05 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GREGORY McKINNEY, No. 09-17008
Plaintiff - Appellant, D.C. No. 1:04-cv-06030-SMM
v.
MEMORANDUM *
T. CASEY and S. BUENTIEMPO,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Stephen M. McNamee, District Judge, Presiding
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
California state prisoner Gregory McKinney appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging denial of
adequate outdoor exercise. We have jurisdiction under 28 U.S.C. § 1291. We
*
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).
review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We
affirm.
The district court properly granted summary judgment because McKinney
failed to raise a genuine issue of material fact as to whether defendants caused the
alleged denial of exercise. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988)
(an official is liable under section 1983 only “if he does an affirmative act,
participates in another’s affirmative acts, or omits to perform an act which he is
legally required to do that causes the deprivation” of which plaintiff complains)
(citation and internal quotation marks omitted).
The district court did not abuse its discretion in denying McKinney’s motion
for appointment of counsel because he failed to establish exceptional
circumstances. See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir.
2004) (setting forth standard of review).
McKinney’s remaining contentions are unpersuasive.
AFFIRMED.
2 09-17008