NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOM MARK FRANKS, Nos. 18-17237
Plaintiff-Appellant,
D.C. No. 1:15-cv-00401-EPG
v.
KIRK, Deputy Sheriff, Modesto Public MEMORANDUM*
Safety Center/Jail; et al.,
Defendants-Appellees,
and
STANISLAUS COUNTY SHERIFF'S
DEPARTMENT,
Defendant.
Appeal from the United States District Court
for the Eastern District of California
Erica P. Grosjean, Magistrate Judge, Presiding**
Submitted March 3, 2020***
*
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).
Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.
California state prisoner Tom Mark Franks appeals pro se from the district
court’s order denying his Federal Rule of Civil Procedure 59(a) motion for a new
trial following a jury verdict for defendants in his 42 U.S.C. § 1983 action arising
out of defendants’ failure to protect him from an inmate assault while he was a
pretrial detainee. We have jurisdiction under 28 U.S.C. § 1291. We review for an
abuse of discretion. Kode v. Carlson, 596 F.3d 608, 611 (9th Cir. 2010). We
affirm.
The district court did not abuse its discretion by denying Franks’s motion for
a new trial because the jury’s verdict was not contrary to the clear weight of the
evidence which included, but was not limited to, testimony that Franks and the
inmate who assaulted him had resolved their prior disagreement and requested to
be housed together. See Kode, 596 F.3d at 612 (explaining that “where the basis of
a Rule 59 ruling is that the verdict is not against the weight of the evidence, the
district court’s denial of a Rule 59 motion is virtually unassailable” and that in
those cases, this court “reverse[s] for a clear abuse of discretion only where there is
an absolute absence of evidence to support the jury’s verdict” (citation and internal
quotation marks omitted)); see also Castro v. County of Los Angeles, 833 F.3d
1060, 1071 (9th Cir. 2016) (en banc) (setting forth elements of a pretrial detainee’s
Fourteenth Amendment failure-to-protect claim).
2 18-17237
Contrary to Franks’s contentions, the district court properly disregarded the
jury’s answers to Questions 2 through 6 on the special verdict form as surplusage.
See Floyd v. Laws, 929 F.2d 1390, 1397 (9th Cir. 1991) (holding that the district
court must dismiss a jury’s “special findings issued in violation of the [district]
court’s express instructions” as “surplusage, as a matter of law”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
3 18-17237