Unpublished Disposition, 927 F.2d 608 (9th Cir. 1991)

MEMORANDUM^** 

Ernest C. Downs appeals pro se the district court's dismissal of his civil rights action without prejudice under Fed. R. Civ. P. 4(j) and Fed. R. Civ. P. 41(b) for failure to prosecute and to comply with two court orders directing him to provide the court with proof of service on the defendants, three United States Forest Service Rangers.¹  We review the district court's dismissal under Rules 4(j) and 41(b) for an abuse of discretion. Hernandez v. Whiting, 881 F.2d 768, 770 (9th Cir. 1989) (Rule 41(b); Townsel v. County of Contra Costa, 820 F.2d 319, 320 (9th Cir. 1987) (Rule 4(j). We vacate and remand.

Fed. R. Civ. P. 4(d) (5) provides that service shall be made upon an officer or agency of the United States by (1) serving the United States²  and (2) sending a copy of the summons and complaint by registered or certified mail to such officer or agency. Failure to comply with Rule 4(d) (5)'s personal service requirement does not require dismissal of the complaint if the party that had to be served received actual notice, the defendant suffers no prejudice from the defect in the service, and the plaintiff would be severely prejudiced if the complaint were to be dismissed. Borzeka v. Heckler, 739 F.2d 444, 446-47 (9th Cir. 1984).

Under Fed. R. Civ. P. 41(b), a district court may dismiss an action "for failure of the plaintiff to prosecute or to comply with these rules or any order of the court." The district court must weigh five factors before imposing the extreme sanction of dismissal: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987), cert. denied, 488 U.S. 819 (1988). If the district court does not explicitly consider these factors, we review the entire record to determine whether the order of dismissal was an abuse of discretion. Id.

Rule 4(j) provides that an action against a defendant shall be dismissed without prejudice if that defendant is not timely 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 within 120 days. See also Fimbres v. United States, 833 F.2d 138, 139 (9th Cir. 1987) (rule 4(j) is intended to force parties to prosecute their actions diligently). Plaintiffs proceeding in forma pauperis, however, are entitled to have process served by a United States Marshal. See 28 U.S.C. § 1915(c); Fed. R. Civ. P. 4(c) (c) (B) (i). Such assistance must be requested explicitly before court officers will be responsible for effecting service of process. Fed. R. Civ. P. 4(c) (2) (B) (i); Baudette v. Barnette, No. 89-16716, slip op. at 588-89 (9th Cir. Jan. 22, 1991).

When Downs filed his complaint in the district court on February 13, 1987, he also moved the district court to allow him to proceed in forma pauperis and requested that the United States Marshal serve process. At that time, a magistrate allowed him to file his complaint without prepayment of the filing fee, but specifically stated that his order did not authorize Downs to proceed in forma pauperis and that the judge to whom the case was assigned would take further action on the case. No action was taken on the complaint, the request for in forma pauperis status, or the request for service by the Marshal. On June 9, the district court issued an order to show cause why his case should not be dismissed for lack of prosecution and stated that satisfactory proof would consist of (1) "proof of service of the summons and complaint on all defendants" and/or (2) " [d]efendant(s)' answer or plaintiff(s)' request for entry of default." Thereafter, Downs provided copies of certified mail receipts showing that he had served the rangers and submitted a request for entry of default judgment. He did not provide documentation that he had served the United States as required by Rule 4(d) (5). On July 9, the district court issued a second order to show cause why his case should not be dismissed for lack of prosecution and stated that satisfactory proof would consist of proof of service of the summons and complaint on the defendants. Downs again submitted copies of the receipts and requested entry of default judgment. On July 23, 1987, the district court dismissed the action without prejudice.

By serving the rangers at least twice by certified mail, and by responding to each district court order with documentation that he had served the rangers, Downs made good faith efforts to comply with the district court orders of June 9 and July 9. Moreover, the district court never addressed Downs's requests for in forma pauperis status and service by the Marshal. Given that Downs is proceeding pro se, we remand to the district court to address Downs's in forma pauperis application. In addition, given the extremely harsh sanction of dismissal, see Malone, 833 F.2d at 130, and given that the statute of limitations probably would bar a subsequent action, Downs should be given another opportunity to properly serve the defendants in accordance with Rule 4(d) (5) even if the district court determines that Downs does not qualify for in forma pauperis status.

VACATED AND REMANDED.