                                                                           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                             NOT FOR PUBLICATION                            JUL 20 2010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
