ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

MICHAEL LEAVITT, Magistrate Judge

I. Procedural History

Plaintiff Robert G. Pauley ("Plaintiff") was formerly incarcerated at Ahtanum View Correctional Complex ("AVCC"), but was released on February 22, 2005 and is currently on community supervision by the Department of Corrections. (Ct. Rec. 14, p. 1). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims Defendants violated his constitutional rights by enacting a no smoking policy at AVCC during the time he was incarcerated at AVCC. (Ct. Rec. 1).

On February 22, 2005, the parties consented to proceed before a magistrate judge. (Ct. Rec. 5). On August 29, 2005, Defendants filed a timely motion for summary judgment. (Ct. Rec. 12). On October 17, 2005, pursuant to Local Rule 7.1(h), the Court ordered the hearing on Defendants' pending motion for summary judgment be reset from October 5, 2005, to December 1, 2005. (Ct. Rec. 16). The court issued Plaintiff a Klingele/ Rand notice after the Defendants filed their motion for summary judgment, to ensure Plaintiff understood the implications of a grant of summary judgment and to permit him the opportunity to file his opposition accordingly. (Ct. Rec. 17). Rand v. Rowland, 154 F.3d 952 (9^th Cir. 1998); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). To date, the Court has received no response by Plaintiff to Defendants' motion for summary judgment. Pursuant to Local Rule 56.1(d), the failure to file a statement of specific facts in opposition to a motion for summary judgment allows the court to assume the facts as claimed by the moving party exist without controversy.

II. Legal Standard

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Under summary judgment practice, the moving party

[A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 586 n. 11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9^th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9^th Cir. 1987).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed.R.Civ.P. 56(c). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9^th Cir. 1987).

Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).

III. Discussion

A. Cruel and Unusual Punishment

To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison conditions must involve "the wanton and unnecessary infliction of pain." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Although prison conditions may be restrictive and harsh, prison officials must provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Id.; Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9^th Cir. 1986); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9^th Cir. 1982). "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." Rhodes, 452 U.S. at 347.

"[E]xtreme deprivations are required to make out a[n] [Eighth Amendment] conditions-of-confinement claim." Hudson v. McMillian, 503 U.S. 1, 9 (citation omitted). "Because routine discomfort is part of the penalty that criminal offenders pay for their offenses against society, only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation." Id. (quotations and citations omitted).

In this case, the condition of confinement of which Plaintiff complains is the right to smoke. Plaintiff has made no showing that smoking is a fundamental right. A ban on smoking is not a deprivation of one's life necessities such as food, clothing, shelter, sanitation, medical care, and personal safety. Moreover, as noted by Defendants, the smoking ban at AVCC protects the rights of non-smoking inmates, staff and visitors, and eliminates potential fire hazards. (Ct. Rec. 13, p. 7). There is no genuine issue for trial with regard to an Eighth Amendment claim in this case; therefore, the Court finds that Defendants have met their burden as the parties moving for summary judgment. Accordingly, Defendants' motion is GRANTED with respect to Plaintiff's Eighth Amendment claim against Defendants.

B. Equal Protection Claim

Equal protection claims arise when a charge is made that similarly situated individuals are treated differently without a rational relationship to a legitimate state purpose. San Antonio School District v. Rodriguez, 411 U.S. 1 (1972). In order to state a § 1983 claim based on a violation of the Equal Protection Clause of the Fourteenth Amendment, a plaintiff must show that defendants acted with intentional discrimination against plaintiff or against a class of inmates which included plaintiff. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (equal protection claims may be brought by a "class of one"); Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9^th Cir. 2000); Barren v. Harrington, 152 F.3d 1193, 1194 (9^th Cir. 1998); Federal Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 471 (9^th Cir. 1991); Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9^th Cir. 1985). "A plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights." Barren, 152 F.3d at 1194.

Plaintiff contends that he has been treated differently than others similarly situated because the State allows other prisoners in other institutions smoking privileges under the same or similar custody levels. (Ct. Rec. 1). However, a similar argument was considered by the court in Webber v. Crabtree, 158 F.3d 460 (9th Cir. 1998). In rejecting that argument, the Ninth Circuit held that inmates are not members of a suspect class. Id. at 461. Plaintiff fails to demonstrate that he is a member of a suspect class. Moreover, the AVCC smoking ban is rationally related to a legitimate state purpose; namely, protecting the health and safety of inmates and staff by providing a clean air environment. Accordingly, Plaintiff's allegations do not give rise to a claim for relief under section 1983 for violation of the Equal Protection Clause. The Court finds that there is no genuine issue for trial with regard to Plaintiff's equal protection claim and Defendants have thus met their burden as the parties moving for summary judgment. Therefore, Defendants' motion for summary judgment is GRANTED with respect to Plaintiff's equal protection claim against Defendants.

C. Due Process

Plaintiff contends that his due process rights were violated because the same person who implemented the no smoking policy was the same person who heard his appeal for the infractions and sanctions imposed on him for violating the policy. (Ct. Rec. 1).

The Due Process Clause protects prisoners from being deprived of liberty without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Where a protectable liberty interest exists, the Supreme Court has set out the following procedural due process requirements for disciplinary detention of a prisoner: (1) written notice of the charges; (2) at least 24 hours between the time the prisoner receives written notice and the time of the hearing, so that the prisoner may prepare his defense; (3) a written statement by the fact finders of the evidence they rely on and reasons for taking disciplinary action; (4) the right of the prisoner to call witnesses in his defense, when permitting him to do so would not be unduly hazardous to institutional safety or correctional goals; (5) legal assistance to the prisoner where the prisoner is illiterate or the issues presented are legally complex. Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

In this instance, the undisputed facts reveal that all of the Wolff requirements were met in each of Plaintiff's four disciplinary hearings. Plaintiff received written notice of the charges against him more than 24 hours prior to the hearing, he was given an opportunity to present witness statements on his behalf, and he was given a written statement outlining the hearing officer's decision. Accordingly, Plaintiff received all of the process he was entitled to under federal law.

Plaintiff contends that the hearing officer was unfair or biased since the individual implementing the no smoking policy was the same person hearing his appeals. Due Process does forbid officials who are directly or substantially involved in the underlying factual events of the charges, or the investigation of the charges, from hearing the charge. Piggie v. Cotton, 342 F.3d 660, 667 (7^th Cir. 2003). However, in the instant case, the undisputed facts reveal that Barbara Whitehead, the hearing officer at all four hearings, was not involved in the events leading to Plaintiff's infractions and did not investigate those charges. In addition, the smoking ban policy was implemented by the Department of Correction, and Superintendent Joop DeJonge merely complied with the DOC policy. The Superintendent's role in the appeal process was not a de novo determination of guilt but merely a review of the record to ensure that the due process requirements were satisfied.

Based on the foregoing, it is apparent that Plaintiff's disciplinary hearings were in accord with the due process clause and there is no genuine issue for trial with regard to Plaintiff's due process claim. Defendants' motion for summary judgment with respect to Plaintiff's due process claim against Defendants is GRANTED.

Due to the findings indicated above, the Court need not reach Defendants' arguments that Defendant Joop DeJonge is entitled to qualified immunity from the suit or that Defendant Department of Corrections/Ahtanum View Correctional Complex is not a "person" for purposes of Section 1983.

IV. Conclusion

For the reasons discussed above, this Court GRANTS Defendants' motion for summary judgment. (Ct. Rec. 12). It IS SO ORDERED. The District Court Executive is hereby directed to enter judgment in favor of Defendants and against Plaintiff, file this Order, provide a copy to Plaintiff and counsel for Defendants, and CLOSE this file.