Unpublished Disposition, 899 F.2d 18 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 18 (9th Cir. 1987)

A.L. HENDERSON, Plaintiff-Appellant,v.Frank TERRY, Major, Robert Goldsmith, Warden, Defendants-Appellees.

No. 87-1880.

United States Court of Appeals, Ninth Circuit.

Limited Remand Dec. 30, 1989.Resubmitted Jan. 30, 1990.* Decided March 21, 1990.

Before WALLACE, SNEED and POOLE, Circuit Judges.


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.

 *

The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 **

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