Unpublished Disposition, 925 F.2d 1470 (9th Cir. 1991)

MEMORANDUM^** 

Mike Hernandez, a California state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action pursuant to Fed. R. Civ. P. 4(j). We have jurisdiction pursuant to 28 U.S.C. § 1291 and review the district court's dismissal under Rule 4(j) for an abuse of discretion. Townsel v. County of Contra Costa, 820 F.2d 319, 320 (9th Cir. 1987). We affirm.

Under Fed. R. Civ. P. 4(j) the district court is required to dismiss an action if the defendant is not served with a copy of the summons and complaint "within 120 days after the filing of the complaint, unless the plaintiff can show good cause why service was not made." Id.

Fed. R. Civ. P. 4(c) (2) (C) (ii) provides that a plaintiff may serve a defendant by mail by sending copies of the complaint and summons, together with two copies of a notice and acknowledgment form. When the acknowledgment is timely returned, service is complete. Worrell v. B.F. Goodrich Co., 845 F.2d 840, 841 (9th Cir. 1988), cert. denied, 109 S. Ct. 3191 (1989). When it is not returned, the rule provides that other methods of service must be employed. Id. (citation omitted). Effective mail service under Rule 4(c) (2) (C) (ii) thus depends on the cooperative response of the defendant. Id. Even though the defendant receives actual notice by mail, there is no valid service unless the acknowledgment is timely returned. Id. at 840-41 (citation omitted).

Plaintiffs proceeding in forma pauperis, however, are entitled to have process served by a United States marshal. See 28 U.S.C. § 1915(c) and Fed. R. Civ. P. 4(c) (2) (B) (i). Such assistance must explicitly be requested before court officers will be responsible for effecting service of process. Fed. R. Civ. P. 4(c) (2) (B) (i); Boudette v. Barnette, No. 89-16716, slip op. at 588-89 (9th Cir. Jan. 22, 1991).

Here, Hernandez filed his complaint in district court on December 20, 1988. The court advised Hernandez that he had 120 days to serve defendants pursuant to Rule 4(j). He was also advised that he may apply to the court for a United States marshal to effect service. Hernandez elected to serve the defendants by mail pursuant to Fed. R. Civ. P. 4(c) (2) (C) (ii). The defendants, however, did not return the acknowledgment form. Thus, service was not effective and Hernandez was required to serve the defendants by other means. See Worrell, 845 F.2d at 841. He was advised of the deficiencies in his service and failed to properly serve defendants within 120 days after his complaint was filed. The district court properly dismissed the action on June 26, 1989.¹ 

AFFIRMED.