                                                                            FILED
                             NOT FOR PUBLICATION                             OCT 13 2011

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




                             FOR THE NINTH CIRCUIT



EARL FELTON CRAGO, Jr.,                          No. 10-16531

               Plaintiff - Appellant,            D.C. No. 4:08-cv-00355-FRZ

  v.
                                                 MEMORANDUM *
DORA B. SCHRIRO, Director of the ADC
at ADC Central Office; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Frank R. Zapata, District Judge, Presiding

                           Submitted September 27, 2011 **

Before:        HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.

       Earl Felton Crago, Jr., an Arizona state prisoner, appeals pro se from the

district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that

defendants violated his Eighth Amendment rights by exposing him to unsafe levels


          *
             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).
of environmental tobacco smoke (“ETS”). We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo, and may affirm on any basis supported by the record.

Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir. 2009). We affirm.

      Summary judgment was proper because Crago failed to raise a genuine

dispute of material fact as to whether defendants disregarded an excessive risk to

his health when they instituted and enforced a smoking policy that attempted to

limit inmate exposure to ETS. See Farmer v. Brennan, 511 U.S. 825, 837 (1994)

(a prison official cannot be found liable under the Eighth Amendment unless the

official knows of and disregards an excessive risk to inmate health or safety).

      The district court did not abuse its discretion by denying Crago’s motion for

appointment of counsel because Crago failed to demonstrate exceptional

circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting

forth standard of review and requirement of “exceptional circumstances” for

appointment of counsel).

      Crago’s remaining contentions are unpersuasive.

      AFFIRMED.




                                          2                                       10-16531
