Unpublished Disposition, 899 F.2d 18 (9th Cir. 1987)

MEMORANDUM^** 

Because Henderson's motion for rehearing and for appointment of counsel dated December 21, 1986, and filed in the district court on December 23, 1986, was never served, it is proper to construe it as a Rule 60(b) motion. So construed, Henderson's notice of appeal filed on January 13, 1987, was timely. We, therefore, have jurisdiction over this appeal.

Nonetheless, because of deficiencies in the record, we must remand this case for a determination of the reasons why appellants were denied outdoor exercise privileges in the time periods relevant to each appellant.

The Magistrate observed, "Although the failure to provide outdoor exercise is not explained by defendants, presumably it was because no suitable area was then available which would safely allow for outdoor exercise by plaintiffs." (Emphasis added.) We cannot resolve this case on the basis of a mere presumption of an important fact. In certain emergencies or exigencies, we have held that depriving a prisoner of outdoor exercise does not violate the Constitution, see, e.g., Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir. 1980), cert. denied, 451 U.S. 937 (1981), whereas in other situations, such a deprivation may rise to constitutional dimensions, see, e.g., Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979).

The circumstances applicable to each prisoner and the justification for such treatment are factors that must be considered in determining whether the Fourteenth Amendment has been abridged. See, e.g., Cabrales v. County of Los Angeles, 864 F.2d 1454, 1462 (9th Cir. 1988); Hoptowit v. Ray, 682 F.2d 1237, 1258 (9th Cir. 1982).

REVERSED AND REMANDED.