FILED
NOT FOR PUBLICATION MAR 30 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALFONSO JACKSON, No. 08-17165
Plaintiff - Appellant, No. 3:05-cv-00428-HDM-RAM
v.
MEMORANDUM *
SHERYL FOSTER; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Submitted March 16, 2010 **
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
Alfonso Jackson, a Nevada state prisoner, appeals pro se from the district
court’s judgment dismissing with prejudice his excessive force claim and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
rgs/Research
summarily adjudicating his claims of deliberate indifference to his medical needs
and safety in his 42 U.S.C. § 1983 action. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo the district court’s dismissal of claims under 28
U.S.C. § 1915A, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and its grant
of summary judgment, Huseman v. Icicle Seafoods, Inc., 471 F.3d 1116, 1120 (9th
Cir. 2006). We affirm.
The district court properly dismissed Jackson’s excessive force claim
because inmate Doakes did not act under color of state law under any formulation
of the governmental actor tests. See Johnson v. Knowles, 113 F.3d 1114, 1118-20
(9th Cir. 1997). The district court properly granted summary judgment on
Jackson’s claim for deliberate indifference to safety against Officer Hollingsworth,
Officer Anderson, Associate Warden Foster, and Athletic Specialist Ferguson
because Jackson did not raise a triable issue that they could have known of or
disregarded the risk that inmate Doakes might unexpectedly punch Jackson in the
face while the two were voluntarily sparring as part of a prison boxing program.
See Farmer v. Brennan, 511 U.S. 825, 834-37 (1994) (describing subjective prong
of deliberate indifference claim). The district court also properly granted summary
judgment on Jackson’s claim for deliberate indifference to serious medical needs
against Dr. Mumford, Nurse Hartman, and Nurse Gutierrez because Jackson did
rgs/Research 2 08-17165
not raise a triable issue that they unreasonably delayed his treatment or denied him
pain medication after he fractured his jaw. See id. Moreover, Nurse Gutierrez’s
verbal harassment of Jackson did not in itself constitute a constitutional
deprivation. See Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987).
We review de novo the district court’s failure to address the merits of
Jackson’s motion for discovery under Rule 56(f) of the Federal Rules of Civil
Procedure, see Bias v. Moynihan, 508 F.3d 1212, 1223 (9th Cir. 2007), and affirm
on other grounds, see Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1097
(9th Cir. 2003). The motion was not untimely because the magistrate judge
ordered after the close of discovery that, among other things, the parties informally
resolve their discovery disputes and seek the court’s assistance if necessary. Even
if the court had reached the merits of his motion, however, Jackson failed to show
how the discovery he sought would have precluded summary judgment. See
Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151, 1161 n.6 (9th Cir. 2001).
AFFIRMED.
rgs/Research 3 08-17165