NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 24 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FLOYD DEWAINE SCOTT, No. 15-17113
Plaintiff-Appellant, D.C. No. 1:09-cv-01329-SKO
v.
MEMORANDUM*
J. PALMER; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Sheila K. Oberto, Magistrate Judge, Presiding**
Submitted April 11, 2017***
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
California state prisoner Floyd Dewaine Scott appeals pro se from the
district court’s judgment following a jury verdict in favor of defendants in Scott’s
42 U.S.C. § 1983 action alleging Eighth Amendment excessive force and failure-
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
to-protect claims. We have jurisdiction under 28 U.S.C. § 1291. We review for an
abuse of discretion the district court’s conduct of voir dire. Paine v. City of
Lompoc, 160 F.3d 562, 564 (9th Cir. 1998). We affirm.
The district court did not abuse its discretion by declining to excuse
Prospective Juror No. 15 for cause after she confirmed that she did not recognize
defendant Rivera. See Image Tech. Servs., Inc. v. Eastman Kodak Co., 125 F.3d
1195, 1219-20 (9th Cir. 1997) (a party “can only succeed on a challenge for cause
by showing that [a juror] was actually biased”).
The district court did not abuse its discretion by instructing the jury, after
each of Scott’s objections during defense counsel’s argument, to rely on its
recollection of the evidence and that counsel’s argument was not evidence. See
Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1107 (9th Cir. 1991)
(“The question is whether counsel’s misconduct so permeated the trial as to lead to
the conclusion the jury was necessarily influenced by passion and prejudice in
reaching its verdict.”); United States v. Spillone, 879 F.2d 514, 518 (9th Cir. 1989)
(setting forth standard of review for district court’s control of closing arguments).
Scott failed to preserve his challenge to the sufficiency of the evidence by
not moving for a judgment as a matter of law prior to the jury’s verdict. See Nitco
Holding Corp. v. Boujikian, 491 F.3d 1086, 1089 (9th Cir. 2007) (“In order to
preserve a challenge to the sufficiency of the evidence to support the verdict in a
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civil case, a party must make two motions. First, a party must file a pre-verdict
motion pursuant to Fed. R. Civ. P. 50(a). Second, a party must file a post-verdict
motion for judgment as a matter of law . . . .” (citations omitted)); see also King v.
Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (pro se litigants are held to same
procedural rules as litigants with counsel).
We reject as unsupported by the record Scott’s other contentions regarding
prejudicial errors during the trial.
We do not consider Scott’s contention that the district court erred by failing
to dismiss the entire jury pool after Prospective Juror No. 5 stated his opinion
about inmates’ rights. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999)
(“[W]e will not consider arguments that are raised for the first time on appeal.”).
AFFIRMED.
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