122 F3d 1072 Maciel v. K Rowland

122 F.3d 1072

James D. MACIEL, Plaintiff-Appellant,
v.
James K. ROWLAND, Jack Regan, B. Barbay; V. Bluestein;
Robert Borg, Eddie Ylst, J.M. Ratele, B. Huston, D. Glenn,
H. Bard, T. Prebula; G. Clift, M. Loftin, W. Hale, K.W.
Prunty; Thomas Hornung; Q.E. Crews, Jr.; C.W. Armstrong;
J.E. Johnson, J.W. Dresbach, W. Raupe, Defendants-Appellees.

No. 95-17244.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 25, 1997.**
Decided Aug. 28, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Appeal from the United States District Court for the Eastern District of California Dennis L. Beck, District Judge, Presiding

Before SCHROEDER, FERNANDEZ and RYMER, Circuit Judges.


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1

MEMORANDUM*

2

James D. Maciel, a California state prisoner, appeals pro se the district court's order granting judgment as a matter of law pursuant to Fed.R.Civ.P. 50(a) in favor of defendants. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court's grant of judgment as a matter of law, see Pierce v. Multnomah County, 76 F.3d 1032, 1037 (9th Cir.), cert. denied, 117 S.Ct. 506 (1996), and we affirm.

3

We conclude that, because Maciel failed to show actual and substantial prejudice, the district court did not abuse its discretion by denying Maciel's motion for a continuance to allow time for additional discovery. See Martel v. County of Los Angeles, 56 F.3d 993, 995 (9th Cir.), cert. denied, 116 S.Ct. 381 1995).

4

We reject Maciel's contention regarding notice of the requirements for response to a summary judgment motion because the district court did not grant a motion for summary judgment.

5

We agree with the district court that Maciel failed to present evidence at trial to show that defendants personally participated in the alleged retaliatory actions. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Maciel also failed to present evidence to show that defendants conspired to retaliate against him. See Pierce, 76 F.3d at 1037. Accordingly, the district court did not err by granting judgment as a matter of law to defendants. See id.

AFFIRMED.1

**

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3


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1

Because of our disposition of this appeal, we do not consider the applicability, if any, of the Prison Litigation Reform Act, Pub.L. No. 104-134, 110 Stat. 1321 (1996), to this appeal