Foye v. Victor Valley Medium Community Correctional Facility

119 F. App'x 871

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 20, 2004
• Docket: No. 03-56163
• Status: Published

Opinion

MEMORANDUM

**

Delgen Foye, a former California state prisoner, appeals pro se the district court’s judgment following a jury trial in his 42 U.S.C. § 1983 action, alleging that a correctional guard used excessive force against him by striking him with a flashlight while he was handcuffed. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion the district court’s denial of a motion for a new trial pursuant to Fed.R.Civ.P. 59(a), Defenders of Wildlife v. Bernal, 204 F.3d 920, 929 (9th Cir.2000), and we affirm.

The district court did not abuse its discretion by denying Foye’s motion for a new trial based on inconsistencies in the jury’s verdict. Given the jury’s finding that the defendant did not act in a malicious and sadistic manner toward Foye, the district court was bound to disregard as surplusage the jury’s subsequent finding that the defendant caused Foye harm. See Floyd v. Laws, 929 F.2d 1390, 1399 (9th Cir.1991) (holding that the trial court must ignore as surplusage subsequent answers given in violation of instructions).

The remaining issues raised in Foye’s opening brief are waived because they are not supported by specific, cogent argument. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.1994).

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.