Malcolm Gray v. Howard Skolnik

MEMORANDUM

Nevada state prisoner Malcolm L. Gray appeals pro se from the district court’s order denying his Fed.R.Civ.P. 60(b) motion for relief from the order dismissing his 42 U.S.C. § 1983 action for failure to serve defendants with the summons and complaint. We have jurisdiction under 28 U.S.C. § 1291 . We review for an abuse of discretion, see Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th Cir.2010), and we affirm in part, vacate in part, and remand.

The district court granted an extension of time and issued a notice to show cause before dismissing Gray’s claims against defendants Holmes, Venneman, Willis, and Ruebart, and Gray failed to show good cause or excusable neglect for his failure to serve them. Thus, the district court did not abuse its discretion in denying the Rule 60(b) motion as to the claims against these defendants. See Oyama v. Sheehan (In re Sheehan), 253 F.3d 507, 512 (9th Cir.2001) (discussing the good cause standard).

By contrast, as to Gray’s claims against the remaining defendants, Gray received a notice to show cause suggesting that those defendants were properly served, and the district court dismissed the claims against those…