Merrick Jose Moore v. J. Sloss;

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NOT FOR PUBLICATION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

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10-17054 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.

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