Jerry L. ARMSTRONG, Plaintiff-Appellant, v. Silvia GARCIA, Warden; et al., Defendants-Appellees, 211 F. App'x 556

MEMORANDUM California state prisoner Jerry L. Armstrong appeals pro se from the district court’s

summary judgment in favor of prison officials in his 42 U.S.C. § 1983 action alleging that he was denied outdoor exercise in violation of the Eighth Amendment. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Beene v. Terhune, 380 F.3d 1149, 1150 (9th Cir.2004), and we affirm. A temporary denial of outdoor exercise during an emergency lockdown period does not rise to the level of an Eighth Amendment violation. See Hayward v.

Procunier, 629 F.2d 599, 603 (9th Cir.1980) (deprivation of outdoor exercise and five month lockdown in response to a genuine emergency did not violate the Eighth Amendment). The defendants’ evidence shows that several attempts to reinstate normal programming and yard privileges in facility B were met with continuing violence between African-American and White inmates. Armstrong does not raise a genuine issue of material fact as to whether defendants acted with deliberate indifference in denying him outdoor exercise during this time of racial unrest at Calipatria State Prison.

Accordingly, the district court properly granted

summary judgment to defendants. See id. Armstrong’s request for return of funds is denied without prejudice to renewing the request upon proof that he submitted a check to this court. Because Armstrong proceeded in forma pauperis in the district court and that status has not been revoked, he was not required to pay a fee to file his appeal. 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.