Merrick Moore v. J. Sloss

FILED NOT FOR PUBLICATION JAN 10 2012 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT MERRICK JOSE MOORE, No. 10-17054 Plaintiff - Appellant, D.C. No. 2:04-cv-00871-MCE- EFB v. J. SLOSS; 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 December 19, 2011 ** 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 * 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). 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. 2 10-17054