Opinion
No. 09-56032.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed July 23, 2010.
Robert L. Jarrett, Jr., Los Angeles, CA, pro se.
Appeal from the United States District Court for the Central District of California Valerie Baker Fairbank, District Judge, Presiding. D.C. No. 2:08-cv-02446-VBF.
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
This disposition is not appropriate for publication and except as provided by 9th Cir. R. 36-3.
Robert L. Jarrett, Jr. appeals pro se from the district court's order dismissing his action for failure to effect service of process within 120 days, as required by Federal Rule of Civil Procedure 4(m). We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion, Puett v. Blandfard, 912 F.2d 270, 273 (9th Cir. 1990), and we reverse and remand.
The district court allowed Jarrett to proceed without prepayment of filing fees, see 28 U.S.C. § 1915(a)(1) (authorizing federal courts to allow a plaintiff to proceed without prepayment of filing fees), entitling him to have officers of the court issue and serve all process, see 28 U.S.C. § 1915(d); Fed.R.Civ.P. 4(c)(3); Puett, 912 F.2d at 273. The district court abused its discretion by dismissing Jarrett's request for court officers to effect service and then dismissing the action for lack of service. If on remand the district court determines that the complaint survives 28 U.S.C. § 1915(e)(2)(B)(i) and (ii) (requiring the district court to dismiss an action filed under § 1915(a) that is frivolous, malicious, or fails to state a claim on which relief may be granted), then the court should proceed to order service of process under § 1915(d).
Jarrett shall bear his own costs on appeal.
Jarrett's motions filed on October 13, 2009, and November 20, 2009, are denied.