Opinion
No. 10-17054 D.C. No. 2:04-cv-00871-MCE-EFB
01-10-2012
MERRICK JOSE MOORE, Plaintiff - Appellant, v. J. SLOSS; et al., Defendants - Appellees.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
California state prisoner Merrick Jose Moore appeals pro se from the district court's judgment as a matter of law for defendant Sloss following a jury trial in Moore's 42 U.S.C. § 1983 action alleging retaliation and violation of his Eighth Amendment rights. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Torres v. City of Los Angeles, 548 F.3d 1197, 1205 (9th Cir. 2008), and we affirm.
The district court properly granted defendant's motion for judgment as a matter of law under Rule 50(a) because Moore failed to present a legally sufficient basis for a reasonable jury to rule in his favor on either the retaliation or Eighth Amendment claim. See Fed. R. Civ. P. 50(a) ("A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury."); see also Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005) (listing elements of conditions-of-confinement claim and explaining that the duration of the deprivation is relevant); Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (listing elements of a prisoner retaliation claim).
We do not consider matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
Moore's remaining contentions are unpersuasive.
AFFIRMED.