                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 08 2010

                                                                         MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



TOVIA LAFAELE,                                    No. 09-15338

               Plaintiff - Appellant,             D.C. No. 2:06-CV-01049-FCD-
                                                  DAD
  v.

ARNOLD SCHWARZENEGGER,                            MEMORANDUM *

               Defendant - Appellee.



                     Appeal from the United States District Court
                         for the Eastern District of California
                    Frank C. Damrell, Jr., District Judge, Presiding

                            Submitted February 16, 2010 **


Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

       Tovia LaFaele, a California state prisoner, appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action challenging the ban on

the use of tobacco products by inmates in California state prisons. We have


          *
             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).
jurisdiction under 28 U.S.C. § 1291. We review de novo, Resnick v. Hayes, 213

F.3d 443, 447 (9th Cir. 2000), and we affirm.

       The district court properly dismissed the Eighth Amendment claim because

LaFaele did not allege facts indicating that defendant was deliberately indifferent

to a serious medical need. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir.

2004) (stating that a defendant acts with deliberate indifference only if he knows of

and disregards an excessive risk to inmate health and safety).

       The district court properly dismissed the due process claim because LaFaele

did not allege facts showing that the ban on tobacco use imposed an “atypical and

significant hardship on [him] in relation to the ordinary incidents of prison life.”

Sandin v. Conner, 515 U.S. 472, 484 (1995).

       The district court properly dismissed the equal protection claim because

LaFaele is not a member of a suspect class, LaFaele has not shown that tobacco use

is a fundamental right, and LaFaele’s complaint indicates that the ban on tobacco

use bears a rational relation to legitimate governmental objectives. See Webber v.

Crabtree, 158 F.3d 460, 461 (9th Cir. 1998) (per curiam).

       AFFIRMED.




DS/Research                                2                                     09-15338
