NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FLOYD DEWAINE SCOTT, 

Plaintiff-Appellant, 

 v. 

J. PALMER; et al., 

Defendants-Appellees. 

No. 15-17113 

D.C. No. 1:09-cv-01329-SKO 

MEMORANDUM*

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).

FILED

APR 24 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 15-17113 

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 
3 15-17113 

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.