Charles Wang v. Governor of State of Californi

FILED
NOT FOR PUBLICATION AUG 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CHARLES WANG, No. 12-16303
Plaintiff - Appellant, D.C. No. 3:11-cv-05648-JW
v.
MEMORANDUM *
GOVERNOR OF THE STATE OF
CALIFORNIA; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Submitted August 14, 2013 **
Before: SCHROEDER, GRABER, and PAEZ, Circuit Judges.
Charles Wang appeals pro se from the district court’s judgment dismissing
his 42 U.S.C. § 1983 action alleging defendants violated his Fourteenth
Amendment rights. We have jurisdiction under 28 U.S.C. § 1291. We review for
*
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).
an abuse of discretion a dismissal for failure to serve the summons and complaint
in a timely manner. Oyama v. Sheehan (In re Sheehan), 253 F.3d 507, 511 (9th
Cir. 2001). We vacate and remand.
Contrary to Wang’s contentions, Wang did not properly serve the summons
and complaint. See Barlow v. Ground, 39 F.3d 231, 234 (9th Cir. 1994)
(“Although California law does permit service of a summons by mail, such service
is valid only if a signed acknowledgment is returned and other requirements are
complied with.”); see also Cal. Civ. Proc. Code § 415.30 (listing the requirements
for service by mail under California law).
However, the district court abused its discretion in dismissing sua sponte
Wang’s action under Rule 4(m) because it did not first give Wang notice and
opportunity to show good cause why service was not made. See Fed. R. Civ. P.
4(m) (recognizing that a district court may sua sponte dismiss a complaint for
failure to serve “after notice to the plaintiff”); In re Sheehan, 253 F.3d at 512-13(discussing Rule 4(m)’s “good cause” standard and the discretion afforded a
district court in extending the time for service even in the absence of good cause).
Accordingly, we vacate the judgment and remand for further proceedings.
VACATED and REMANDED.
2 12-16303