FILED
NOT FOR PUBLICATION MAR 10 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RONALD FOSTER, No. 09-16314
Plaintiff - Appellant, D.C. No. 1:06-CV-00792-BLW-
MHW
v.
NOYCE, Correctional Officer; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
B. Lynn Winmill, District Judge, Presiding **
Submitted February 15, 2011 ***
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
California state prisoner Ronald Foster appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging that defendants
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable B. Lynn Winmill, Chief Judge of the District of Idaho,
sitting by designation.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
deprived him of an adequate number of daily meals. We have jurisdiction under
28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056
(9th Cir. 2004). We affirm.
The district court properly granted summary judgment on Foster’s Eighth
Amendment claim because Foster failed to raise a genuine issue of material fact as
to whether the food he received was inadequate to maintain his health. See
LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993) (“The Eighth Amendment
requires only that prisoners receive food that is adequate to maintain health. . . .”).
The district court properly dismissed Foster’s due process claim because it
was correctly construed as an Eighth Amendment claim. See Graham v. Connor,
490 U.S. 386, 395 (1989) (where a particular Amendment “provides an explicit
textual source of constitutional protection” against a particular sort of government
behavior, “that Amendment, not the more generalized notion of ‘substantive due
process,’ must be the guide for analyzing these claims”).
Foster’s remaining contentions are unpersuasive.
AFFIRMED.
2 09-16314