                                                                            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                             NOT FOR PUBLICATION                             MAR 30 2010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).

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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


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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.




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