Ward v. Alese

50 F. App'x 371

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 6, 2002
• Docket: No. 01-17400; D.C. No. CV-98-00344-RCC
• Status: Published

Opinion

MEMORANDUM

**

The district court did not err in granting Appellee Capt. John Alese’s (“Alese”) motion for summary judgment. Appellant Timothy Lee Ward (“Ward”) misread the deadline date to oppose Alese’s motion for summary judgment and thus failed to timely respond. Since Ward’s incarceration did not contribute to his failure to respond, the district court properly denied Ward’s request for an extension. See Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir.1987).

The district court did permit Ward to challenge the magistrate judge’s recommendation in lieu of filing an opposition to the motion for summary judgment. Ward thus had sufficient opportunity to file a substantive response. Contrary to Ward’s contention, the district court may review-additional evidence in conducting its de novo review of a magistrate judge’s recommendation. Brown v. Roe, 279 F.3d 742, 744 (9th Cir.2002). Accordingly, Ward is unable to establish that the district court abused its discretion.

This Court reviews the deprivation of Eighth Amendment rights on a case-by-case basis. A temporary deprivation of outdoor exercise with no medical effects is insufficient to demonstrate deliberate indifference. May v. Baldwin, 109 F.3d 557, 565 (9th Cir.1997). Ward has failed to raise a genuine issue of material fact regarding deliberate indifference.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.