The opinion
FILED
NOT FOR PUBLICATION JUL 20 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBERT L. FINLEY, No. 09-16258
Plaintiff - Appellant, D.C. No. 2:06-CV-01086-RLH-
LRL
v.
DWIGHT NEVEN, Warden; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Chief Judge, Presiding
Submitted June 29, 2010 **
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
Robert L. Finley, a former Nevada state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action implicating the
Eighth Amendment and alleging that defendants deprived him of a mattress. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
decision regarding qualified immunity. Ramirez v. City of Buena Park, 560 F.3d
1012, 1019 (9th Cir. 2009). We affirm.
The district court properly concluded that defendants were entitled to
qualified immunity because prisoners do not have a clearly established right to
sleep on a comfortable mattress. See Rhodes v. Chapman, 452 U.S. 337, 347
(1981) (“[C]onditions that cannot be said to be cruel and unusual under
contemporary standards are not unconstitutional. To the extent that such
conditions are restrictive and even harsh, they are part of the penalty that criminal
offenders pay for their offenses against society.”); Hernandez v. Denton, 861 F.2d
1421, 1424 (9th Cir. 1988) (a short term deprivation of a mattress is insufficient to
state an Eighth Amendment violation), judgment vacated on other grounds, 493
U.S. 801 (1989). The record reflects that during the time period when Finley
alleges he did not have a mattress, defendants provided him with an “alternative
mattress,” consisting of three wool blankets.
Finley’s remaining contentions are unpersuasive.
AFFIRMED.
2 09-16258