Michael Alston v. Bradley Foster

FILED
NOT FOR PUBLICATION JUN 02 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL A. ALSTON, No. 14-15209
Plaintiff - Appellant, D.C. No. 2:13-cv-00850-MHB
v.
MEMORANDUM*
BRADLEY FOSTER; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Michelle H. Burns, Magistrate Judge, Presiding**
Submitted May 24, 2016***
Before: REINHARDT, W. FLETCHER, and OWENS, Circuit Judges.
Michael A. Alston appeals pro se from the district court’s order dismissing
for lack of prosecution under Fed. R. Civ. P. 41(b) his employment action. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review for an abuse of discretion. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th
Cir. 1986). We affirm.
The district court did not abuse its discretion by dismissing the action
without prejudice because Alston failed to establish good cause for his failure to
serve the summons and complaint in a proper manner. See Fed. R. Civ. P. 4(m)
(pre-2015 amendment requires service within 120 days after the complaint is
filed); Ash v. Cvetkov, 739 F.2d 493, 495-97 (9th Cir. 1984) (listing factors to
consider before dismissing an action for failure to prosecute, and explaining that
“dismissal without prejudice is a more easily justified sanction for failure to
prosecute”); see also In re Sheehan, 253 F.3d 507, 512-13 (9th Cir. 2001)
(discussing good cause and district court’s broad discretion to extend time for
service or to dismiss the action without prejudice).
The district court did not abuse its discretion by denying Alston’s motion for
appointment of counsel because Alston did not demonstrate exceptional
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting
forth standard of review and exceptional circumstances requirement for
appointment of counsel); Johnson v. U.S. Treasury Dep’t, 27 F.3d 415, 416-17(9th
Cir. 1994) (listing factors for courts to consider when appointing counsel in an
employment discrimination action).
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We reject as without merit Alston’s argument that the clerk of the district
court failed in its obligation to direct the U.S. Marshals Service to serve defendants
once the district court permitted Alston to proceed in forma pauperis.
AFFIRMED.
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