                                                                            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                                  NOT FOR PUBLICATION                        MAR 10 2011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.




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