                                                                            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                             NOT FOR PUBLICATION                             APR 27 2011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
