Hill v. Stun Tech, Inc.

104 F. App'x 686

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 16, 2004
• Docket: No. 03-16387; D.C. No. CV-02-04126-SI
• Status: Published

Opinion

MEMORANDUM

**

Brian Tracey Hill, a former California state prisoner, appeals pro se the district court’s judgment dismissing his 42 U.S.C. § 1983 action pursuant to Fed.R.Civ.P. 4(m) for failure to timely serve process. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion, Oyama v. Sheehan (In re Sheehan), 253 F.3d 507, 511 (9th Cir.2001), and we affirm.

Because Hill did not serve process on defendants for over ten months after filing his complaint, the district court did not abuse its discretion by dismissing Hill’s action under Rule 4(m). See Hason v. Med. Bd. of Cal, 279 F.3d 1167, 1174 (9th Cir.2002). Hill was not entitled to service of process by the United States Marshal because he was not proceeding in forma pauperis. See Fed.R.Civ.P. 4(c)(2). Hill’s assertion that he was so entitled, pursuant to 28 U.S.C. § 1921(c)(2) and 28 C.F.R. § 0.114, is unavailing, because these provisions merely discuss the fees appropriate for service by the United States Marshal.

The district court’s denial of Hill’s Fed. R.Civ.P. 60(b) motion is not an issue on appeal because Hill did not amend his notice of appeal to include the August 15, 2003 order. See Fed. R.App. P. 4(a)(4)(A)(B)(ii).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.