                                                                           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                             NOT FOR PUBLICATION                            JAN 10 2012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
