Unpublished Disposition, 902 F.2d 40 (9th Cir. 1986)

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U.S. Court of Appeals for the Ninth Circuit - 902 F.2d 40 (9th Cir. 1986)

No. 86-2216.

United States Court of Appeals, Ninth Circuit.

Before TANG and BEEZER, Circuit Judges, and ALBERT LEE STEPHENS, Jr.,**  District Judge.

MEMORANDUM*** 

Avitt Allen Stamps, Jr. appeals from the district court's dismissal of his complaint without prejudice for failure to serve a summons and complaint upon defendants pursuant to Rule 4(j) of the Federal Rules of Civil Procedure. We have jurisdiction over the final order, and we review for an abuse of discretion. Wei v. Hawaii, 763 F.2d 370, 371 (9th Cir. 1985). We affirm.

Stamps filed a complaint under 42 U.S.C. § 1983 on January 22, 1986.1  On March 4, 1986, the district court ordered Stamps to serve the defendants on or before May 22, 1986. Stamps did not comply with the court's order, and the district court dismissed Stamps's complaint without prejudice on May 23, 1986. Rule 4(j) permits district judges to dismiss complaints without prejudice when service of process is not made within 120 days.

We recently held that dismissal under Rule 4(j) is improper when United States Marshals have failed to serve process for parties proceeding in forma pauperis as required by Federal Rule of Civil Procedure 4(c) (2) (B). Puett v. Blandford, 895 F.2d 630 (9th Cir. 1990). Although Stamps appeals in forma pauperis, his action in the district court was not filed in forma pauperis. The court's dismissal was therefore proper.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

 **

The Honorable Albert Lee Stephens, Jr., Senior United States District Judge for the Central District of California, sitting by designation

 ***

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 Cir.R. 36-3

 1

We note that the allegations in Stamps's complaint differ substantially from the allegations in his brief on appeal. Were we to reach the merits of this case, we would, of course, decline to review arguments not made to the district court