Binam v. Spalding

120 F. App'x 745

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 11, 2005
• Docket: No. 04-35176
• Status: Published

Opinion

MEMORANDUM

**

Former Idaho state prisoner Ervin Ray Binam appeals pro se the district court’s orders granting summary judgment and denying his Fed.R.Civ.P. 59(a) motion for a new trial in his 42 U.S.C. § 1983 action alleging violation of the Eighth Amendment and medical malpractice. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court’s grant of summary judgment, Delta Savings Bank v. United States, 265 F.3d 1017, 1021 (9th Cir.2001), and we review for abuse of discretion the district court’s denial of a motion for a new trial, Alford v. Haner, 333 F.3d 972, 975 (9th Cir.2003). We affirm.

The district court properly granted summary judgment to defendants Spalding, Klauser, Sarver, Braseth, Snarr, Cooper, and Little because Binam failed to raise a genuine issue of material fact for trial. See Sanchez v. Vild, 891 F.2d 240, 242, (9th Cir.1989) (explaining that prisoner must present triable issues of fact to overcome summary judgment motion).

The district court did not abuse its discretion in denying Binam’s motion for a new trial on whether defendant Clyde was deliberately indifferent to Binam’s need for arthritis medication, because the jury’s verdict was not contrary to the clear weight of evidence. See Roy v. Volkswagen of Am., Inc., 920 F.2d 618, 619 (9th Cir.1990) (internal quotations omitted). The district court properly granted partial summary judgment to Clyde on the remaining claims. See Sanchez, 891 F.2d at 242.

Binam’s remaining contentions are unpersuasive.

Binam’s request for fees and costs is denied.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.