Gregory McKinney v. T. Casey, et al, No. 09-17008 (9th Cir. 2010)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 05 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT GREGORY McKINNEY, Plaintiff - Appellant, No. 09-17008 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

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