Unpublished Disposition, 897 F.2d 533 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 897 F.2d 533 (9th Cir. 1989)

Robert B. SWEARINGEN, Plaintiff-Appellant,v.CDR., HQ., 63RD ARCOM, et al., Defendants-Appellees.

No. 89-55222.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 28, 1990.* Decided March 5, 1990.

Appeal from the United States District Court for the Central District of California; Robert M. Takasugi, District Judge, Presiding.

C.D. Cal.

AFFIRMED.

Before ALARCON, CYNTHIA HOLCOMB HALL and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

Robert B. Swearingen appeals pro se the district court's dismissal of his action for failure to serve process within 120 days after his complaint was filed as required by Fed. R. Civ. P. 4(j). Swearingen contends that the district court erred because he had good cause for failing to personally serve the United States Attorney. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

We review the district court's dismissal under Fed. R. Civ. P. 4(j) for an abuse of discretion. Fimbres v. United States, 833 F.2d 138, 139 (9th Cir. 1987).

Under Fed. R. Civ. P. 4(j), an action shall be dismissed if the plaintiff, without good cause, fails to properly serve the defendant with a copy of the summons and complaint within 120 days after filing the complaint. Fed. R. Civ. P. 4(j); Townsel v. County of Contra Costa, 820 F.2d 319, 320 (9th Cir. 1987). Swearingen failed to personally serve process upon the United States Attorney within the original 120-day period or the first 30-day extension of time. Swearingen was required to personally serve the summons and complaint upon the United States Attorney because his action was against a federal officer or agency. Fed. R. Civ. P. 4(d) (4) & (5); see Borzeka v. Heckler, 739 F.2d 444, 447 (9th Cir. 1984).

On January 4, 1989, the district court, sua sponte and after the motion to dismiss and responsive pleadings had been filed, granted Swearingen a second extension of time until February 1, 1989 "to properly serve, by personal delivery, the office of the United States Attorney." In opposing the motion to dismiss, Swearingen argued that Rule 4(d) (5) does not require personal service upon the United States Attorney. Despite his pro se status, Swearingen's ignorance of Rule 4(d) (5)'s requirements would not have excused his failure to comply with Rule 4(j). See Swimmer v. IRS, 811 F.2d 1343, 1345 (9th Cir. 1987). The district court's order, although not expressly referring to Rule 4(d) (5), requires him to comply with that Rule.

On February 13, 1989, Swearingen requested yet another extension of time to serve and attached to the request a copy of his medical record showing that he had undergone heart surgery on January 13, 1989 and was thereafter restricted from driving. Swearingen states that he did not know of the second extension of time to serve until he returned home on February 9, 1989. The district court filed its order of dismissal on the same day Swearingen filed his request. The order was entered the next day, February 14, 1989.

The record does not indicate that Swearingen's request, along with the information pertaining to his medical problems, was before the district court when it dismissed his complaint. Thus, because the record as it appeared when the district court ordered dismissal supports the court's decision, we cannot say that the district court abused its discretion. See Fimbres, 833 F.2d at 139.

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4. Therefore, Swearingen's request for oral argument is denied

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3