Ronald P. Foster v. Sandra Cole

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NOT FOR PUBLICATION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
RONALD P. FOSTER,
Plaintiff - Appellant,
v.
SANDRA COLE,
Defendant - Appellee.
No. 10-16676
D.C. No. 2:03-cv-01113-JAM-
JFM
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted January 17, 2012**
Before: LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.
California state prisoner Ronald P. Foster appeals pro se from the district
court’s judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50
following a jury trial in Foster’s 42 U.S.C. § 1983 action alleging Eighth
FILED
JAN 25 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

10-16676 2
Amendment violations. We have jurisdiction under 28 U.S.C. § 1291. We
dismiss.
We are unable to consider Foster’s contentions that the district court erred
by granting defendant’s motion for judgment as a matter of law, and by allegedly
excluding witness testimony, because Foster failed to provide any portion of the
trial transcript. See Fed. R. App. P. 10(b)(2); Hall v. Whitley, 935 F.2d 164, 165
(9th Cir. 1991) (per curiam). Furthermore, the district court did not abuse its
discretion by denying without prejudice Foster’s request for production of
transcripts at government expense because Foster did not explain the issues that he
would raise on appeal. See McKinney v. Anderson, 924 F.2d 1500, 1511-12 (9th
Cir. 1991), overruled on other grounds by Helling v. McKinney, 502 U.S. 903
(1991) (reviewing for an abuse of discretion and noting that “[p]roduction of the
transcript at government expense for an appellant in forma pauperis in a civil case
is proper under 28 U.S.C. § 753 if a trial judge certifies that the appeal is not
frivolous and presents a substantial question”).
DISMISSED.

-- 2 of 2 --