FILED
NOT FOR PUBLICATION APR 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
VERNON WAYNE MCNEAL, No. 08-17301
Plaintiff - Appellant, D.C. No. 2:02-cv-02524-MCE-
JFM
v.
FLEMING, C/O; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted April 5, 2011 **
Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges.
Vernon Wayne McNeal, a California state prisoner, appeals pro se from the
district court’s judgment as a matter of law following a jury trial in his 42 U.S.C.
§ 1983 action alleging excessive force. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo. Mangum v. Action Collection Serv., Inc., 575 F.3d
*
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).
935, 938 (9th Cir. 2009). We vacate and remand.
Before granting judgment as a matter of law, Federal Rule of Civil
Procedure 50 requires district courts to apprise parties of the deficiencies in their
proof, and to give them an opportunity to present further evidence on the
dispositive facts. See Waters v. Young, 100 F.3d 1437, 1442 (9th Cir. 1996). The
record indicates that the district court informed McNeal that he had not provided
sufficient evidence for a reasonable jury to conclude that the force used against
him was maliciously and sadistically applied. In response, McNeal stated that he
was attacked while being escorted by guards back to his cell. This evidence,
considered along with his previous testimony that his hands were cuffed behind his
back, is sufficient for a reasonable jury to conclude that defendants used force
maliciously and sadistically to cause him harm. Accordingly, we vacate and
remand for a new trial.
Each party shall bear its own costs on appeal.
VACATED and REMANDED.
2 08-17301