NOT FOR PUBLICATION FILED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