Charles Wang v. Governor of State of Californi

539 F. App'x 733

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 21, 2013
• Docket: 12-16303
• Status: Unpublished

Opinion

MEMORANDUM **

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 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, 258 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.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.