Rudy S. RODRIGUEZ, Plaintiff-Appellant, v. A. LAMARQUE, Warden; et al., Defendants-Appellees, 172 F. App'x 200

MEMORANDUM Rudy Rodriguez, a prisoner incarcerated in Salinas Valley State Prison (SVSP), appeals from the

summary judgment in favor of SVSP prison warden, Anthony LaMarque, and prison officials, R. Hernandez, P. Mandeville, and M. Collie (collectively “LaMarque”), in Rodriguez’s 42 U.S.C. § 1983 action. We affirm. We cannot say whether Rodriguez has met the requirements of the Eighth Amendment without further development of the record. His deprivation was more complete but for less time than we held unconstitutional in Allen v.

Sakai, 48 F.3d 1082 (9th Cir.1994) (as amended), and unlike Allen, not all (or perhaps any part) of it was of indefinite duration; it was also shorter than, but of similar character to, the deprivation in Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000) (en banc), which we said was “long term” as it exceeded the Allen threshold. Id. at 1133 n. 15. Rodriguez’s deprivation was for more time than we found “temporary’ and thus constitutional in May v. Baldwin, 109 F.3d 557 (9th Cir.1997), absent medical effects.

While the parties do not dispute the historic facts, it is not clear what inferences to draw from the fact that Rodriguez’s housing in administrative segregation was in three increments. However, there is no question that LaMarque is entitled to qualified immunity because Allen, Lopez, and May do not clearly establish that a deprivation of outdoor exercise for the period endured by Rodriguez, without adverse medical effects, is substantial for Eighth Amendment purposes. What happened to Rodriguez falls somewhere between Allen and Lopez on the one hand, and May on the other.

In the circumstances, an objectively reasonable prison official would not have realized that his conduct was unconstitutional. See Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Given this disposition, we do not need to reach whether Rodriguez’s claim for damages is barred. 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 9th Cir. R. 36-3.