Malcolm Gray v. Howard Skolnik ( 2011 )

FILED
NOT FOR PUBLICATION JUL 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MALCOLM L. GRAY, No. 10-15962
Plaintiff - Appellant, D.C. No. 2:07-cv-01379-PMP-
LRL
v.
HOWARD SKOLNIK, Director of MEMORANDUM *
NDOC; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Submitted July 12, 2011 **
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
Nevada state prisoner Malcolm L. Gray appeals pro se from the district
court’s order denying his Fed. R. Civ. P. 60(b) motion for relief from the order
dismissing his 42 U.S.C. § 1983 action for failure to serve defendants with the
*
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).
summons and complaint. We have jurisdiction under 28 U.S.C. § 1291. We
review for an abuse of discretion, see Ahanchian v. Xenon Pictures, Inc., 624 F.3d
1253, 1258 (9th Cir. 2010), and we affirm in part, vacate in part, and remand.
The district court granted an extension of time and issued a notice to show
cause before dismissing Gray’s claims against defendants Holmes, Venneman,
Willis, and Ruebart, and Gray failed to show good cause or excusable neglect for
his failure to serve them. Thus, the district court did not abuse its discretion in
denying the Rule 60(b) motion as to the claims against these defendants. See
Oyama v. Sheehan (In re Sheehan), 253 F.3d 507, 512 (9th Cir. 2001) (discussing
the good cause standard).
By contrast, as to Gray’s claims against the remaining defendants, Gray
received a notice to show cause suggesting that those defendants were properly
served, and the district court dismissed the claims against those defendants without
warning or explanation. See Pioneer Inv. Servs. v. Brunswick Assocs. Ltd., 507
U.S. 380, 395 (1993) (listing four factors relevant to Rule 60(b)(1) motions);
Lemoge v. United States, 587 F.3d 1188, 1192-95 (9th Cir. 2009) (district court
abused its discretion by failing to apply the relevant factors to a Rule 60(b)(1)
motion seeking reconsideration of a dismissal for failure to effect timely service).
2 10-15962
Accordingly, we vacate the dismissal as to the remaining defendants and remand
for further proceedings.
Gray shall bear his own costs on appeal.
AFFIRMED in part, VACATED in part, AND REMANDED.
3 10-15962