Unpublished Disposition, 927 F.2d 608 (9th Cir. 1991)
Annotate this CaseWilliam Lee DOURTH, Plaintiff-Appellant,v.SHERIFF OF CARSON CITY, Defendant-Appellee.
No. 90-16049.
United States Court of Appeals, Ninth Circuit.
Submitted Mar. 1, 1991.* Decided March 5, 1991.
Appeal from the United States District Court for the District of Nevada, No. CV-88-0279-HDM; Howard D. McKibben, District Judge, Presiding.
D. Nev.
AFFIRMED.
Before FLETCHER, PREGERSON and TROTT, Circuit Judges.
MEMORANDUM**
William Lee Dourth, a Nevada state prisoner, appeals pro se the district court's grant of summary judgment in favor of the defendant in this 42 U.S.C. § 1983 action. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review de novo the district court's grant of summary judgment. Hutchinson v. United States, 838 F.2d 390, 392 (9th Cir. 1988). In opposing a summary judgment motion, the non-moving party may not rest on conclusory allegations, but rather must set forth facts showing that there exists a genuine issue for trial. Id. Jail personnel violate a prisoner's eighth amendment rights if they are deliberately indifferent to the prisoner's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). The denial of outdoor exercise for an extended period of time also may violate a prisoner's eighth amendment rights. Spain v. Procunier, 600 F.2d 189, 199-200 (9th Cir. 1979).1
Dourth's complaint alleged that while he was a pretrial detainee at the Carson City Jail between January of 1987 and February of 1988, he was denied (1) psychiatric treatment for a nervous disorder, and (2) outdoor exercise. In support of his motion for summary judgment, the sheriff provided an affidavit from the deputy sheriff responsible for providing the inmates with outdoor exercise. This affidavit demonstrates that Dourth had numerous opportunities for outdoor exercise while he was incarcerated at the Carson City Jail. The sheriff also provided an affidavit from the jail's doctor who stated that (1) he provided medical care and medication to Dourth on a regular basis, (2) Dourth had access to a psychiatrist, and (3) based on the psychiatrist's recommendation, Dourth received medication for emotional problems. Dourth's response to the motion for summary judgment did not include an affidavit and did not rebut the facts contained in the defendant's affidavits. Accordingly, the district court properly granted summary judgment because Dourth failed to raise a genuine issue of material fact and the defendant was entitled to judgment as a matter of law. See Estelle, 429 U.S. at 104-05; Spain, 600 F.2d at 199-200.
AFFIRMED.
The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
Because Dourth was a pretrial detainee at the time of the alleged wrongful conduct, his section 1983 action arises from the due process clause of the fourteenth amendment rather than the cruel and unusual punishment clause of the eighth amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986). Nevertheless, the eighth amendment guarantees provide a minimum standard of care for determining Dourth's right to medical treatment and to outdoor exercise. See City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983); Jones, 781 F.2d at 771. Moreover, both the eighth and fourteenth amendments prohibit cruel and unusual punishment. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986)
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