                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 19 2012

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DONALD LYLE STRATTON,                            No. 10-35656

              Plaintiff - Appellant,             D.C. No. 3:09-cv-05571-RJB-KLS

  v.
                                                 MEMORANDUM *
JULIE BUCK, et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                 for the Western District of Washington at Tacoma
                      Robert J. Bryan, District Judge, Presiding

                        Argued and Submitted June 8, 2012
                               Seattle, Washington

Before: SILVERMAN and MURGUIA, Circuit Judges, and KOBAYASHI,
District Judge.**

       Plaintiff Donald Lyle Stratton (“Stratton”) appeals from the judgment in

favor of Defendant Julie Buck, M.D. (“Dr. Buck”) entered pursuant to the order




        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
          The Honorable Leslie E. Kobayashi, United States District Judge for the
District of Hawaii, sitting by designation.
granting summary judgment in favor of Dr. Buck.1 We have jurisdiction pursuant

to 28 U.S.C. § 1291, and we affirm.

      We review a district court’s grant of summary judgment de novo. Emeldi v.

Univ. of Or., 673 F.3d 1218, 1223 (9th Cir. 2012). We review the district court’s

findings of fact for clear error, and we review the district court’s conclusions of

law de novo. Red Lion Hotels Franchising, Inc. v. MAK, LLC, 663 F.3d 1080,

1087 (9th Cir. 2011). We review for an abuse of discretion the district court’s

decision not to permit further discovery to oppose a motion for summary judgment.

Nev. Dep’t of Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011), cert. denied,

132 S. Ct. 1823 (2012).

      First, Stratton argues that the district judge erred in granting summary

judgment to Dr. Buck because Stratton did not receive the notice described in Rand

v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), when Dr. Buck filed her

motion for summary judgment. Stratton did receive the magistrate judge’s Pretrial

Scheduling Order, filed January 13, 2010, which contained a section entitled

“MOTIONS” and which quoted the model notice appended to Rand. This Court,

however, has recently held that Rand notices “must be served concurrently with . . .

      1
        Stratton also appeals from the judgment in favor of Defendant Dale Brown
(“Brown”) entered pursuant to the order granting Brown’s motion to dismiss. That
portion of Stratton’s appeal is addressed in a separate Opinion filed concurrently
with the instant Memorandum.

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motions for summary judgment so that pro se prisoner plaintiffs will have fair,

timely and adequate notice of what is required of them in order to oppose those

motions.” Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012). Thus, in the instant

case, the magistrate judge’s Pretrial Scheduling Order did not provide Stratton with

the notice required by Rand and Woods.

      Woods also recognized that “[t]he failure to provide adequate Rand notice is

a ground for reversal unless it is clear from the record that there are no facts that

would permit the inmate to prevail.” Id. at 941 (citing Rand, 154 F.3d at 962 n.9).

In ruling on Dr. Buck’s motion for summary judgment, the district judge

considered Dr. Buck’s declaration, which stated, inter alia, that: when Dr. Buck

treated Stratton, she was practicing in the hospital as an independent contractor;

neither the hospital nor the state was her employer; and she did not act at the

request of, at the direction of, or in coordination with the state. At the oral

argument before this court, Stratton’s counsel admitted that the district judge had

all of the relevant facts on the state actor issue when he ruled on Dr. Buck’s motion

for summary judgment. Based on Dr. Buck’s declaration and Stratton’s admission

during oral argument, it is clear from the record that there are no facts that would

permit the inmate to prevail. See discussion infra affirming the district judge’s

conclusion that Dr. Buck was not a state actor. We therefore hold that the failure



                                            3
to give the Rand notice contemporaneously with the filing of Dr. Buck’s motion

for summary judgment was harmless under the facts of this case.

      Second, Stratton contends that the district judge abused his discretion when

he denied Stratton’s request to conduct discovery to respond to Dr. Buck’s motion

for summary judgment. In his objections to the magistrate judge’s Report and

Recommendation to grant Dr. Buck’s motion for summary judgment, Stratton

argued that he could not properly oppose Dr. Buck’s motion because Dr. Buck had

not responded to his discovery requests. Dr. Buck’s counsel attached the responses

to a declaration filed after Stratton filed his objections. Dr. Buck’s responses were

consistent with the declaration that she submitted with her motion for summary

judgment, and Stratton did not seek leave to supplement his objections in light of

Dr. Buck’s discovery responses. Moreover, Stratton failed to identify either

specific relevant information in Dr. Buck’s responses that would have supported

Stratton’s opposition to Dr. Buck’s motion for summary judgment or specific

information indicating that further discovery would lead to relevant evidence

supporting Stratton’s opposition. We therefore hold that the district judge’s denial

of Stratton’s request to conduct discovery to respond to Dr. Buck’s motion for

summary judgment was not an abuse of discretion.

      Finally, Stratton argues that the district judge erred in concluding that



                                          4
Dr. Buck was not acting under color of state law when she treated him. Generally,

private conduct is not considered government action unless “‘something more’” is

present. Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir.

1999) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982)). “Courts

have used four different factors or tests to identify what constitutes ‘something

more’: (1) public function, (2) joint action, (3) governmental compulsion or

coercion, and (4) governmental nexus.” Id. at 835-36 (some citations omitted)

(citing Lugar, 457 U.S. at 939). Dr. Buck relies on the statements in her

declaration, and she also argues that, under the Emergency Medical Treatment and

Active Labor Act, 42 U.S.C. § 1395dd, she could not choose whether or not to

provide treatment to Stratton. Stratton did not present any evidence to contest this

and, as previously stated, he did not identify any further discovery that he could

have done to respond to Dr. Buck’s motion for summary judgment. Thus, under

the facts of this case, neither the joint action test, the governmental compulsion or

coercion test, nor the governmental nexus test applies. Further, there is no Ninth

Circuit case law holding that emergency medical care is a traditionally and

exclusively governmental function. We therefore affirm the district judge’s

conclusion that Dr. Buck’s treatment of Stratton did not constitute state action, and

we affirm the district judge’s grant of summary judgment in favor of Dr. Buck.



                                           5
     Accordingly, we AFFIRM the judgment in favor of Dr. Buck.

     In this case, there is a mixed judgment, where each side has won something

and lost something, the parties are therefore ordered to bear their own costs on

appeal. Exxon Valdez v. Exxon Mobil, 568 F.3d 1077, 1081 (9th Cir. 2009).




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