KEVIN R. SCHRUBB, Sr. v. A. S. Lopez; M. Bryant

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN R. SCHRUBB, Sr.,
Plaintiff - Appellant,
v.
A. S. LOPEZ; M. BRYANT,
Defendants - Appellees.
No. 14-15681
D.C. No. 3:12-cv-00418-JSW
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Submitted September 30, 2015**
San Francisco, California
Before: THOMAS, Chief Judge and HAWKINS and McKEOWN, Circuit Judges.
Kevin R. Schrubb, Sr., a California state prisoner, appeals pro se from the
district court’s order denying reconsideration of the dismissal of his complaint.
The district court dismissed his 42 U.S.C. § 1983 action for failure to serve
FILED
OCT 02 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 3 --

defendants under Rule 4(m) of the Federal Rules of Civil Procedure. We have
jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion.
Latshaw v. Trainer Wortham & Co., 452 F.3d 1097, 1100 (9th Cir. 2006).
The central question in this case is whether the district court properly
analyzed whether Schrubb established “excusable neglect” under Rule 60(b)(1). In
examining this question, we have established a four-factor test: “(1) the danger of
prejudice to the opposing party; (2) the length of the delay and its potential impact
on the proceedings; (3) the reason for the delay; and (4) whether the movant acted
in good faith.” Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009)
(citation omitted). We explained in Lemoge that failing to identify this standard or
to correctly analyze each factor is an abuse of discretion, and we reversed the
district court’s denial of a motion for reconsideration because the district court had
failed to discuss one of the factors. Id. at 1192-93. We noted that it is not “merely
a matter of the district court not citing and stating the test,” but “[m]ore
importantly, we are concerned that the substance of the district court’s analysis
wholly omitted discussion of one of the four factors . . .” Id. at 1193.
Here, the district court did not provide any analysis of the factors. Although
that omission is understandable given the state of the pro se pleadings, our caselaw
requires such an analysis. More importantly, in the context of this case, we have
14-15681 2

-- 2 of 3 --

also held that a prisoner “is entitled to rely on the U.S. Marshal for service” and
that as long as he or she “provide[s] the necessary information to help effectuate
service,” a prisoner “should not be penalized by having his or her action dismissed
. . . where the U.S. Marshal or the court clerk has failed to perform the duties
required of each of them . . .” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir.
1990); see also Richardson v. Johnson, 598 F.3d 734, 738-40 (11th Cir. 2010).
Here, the prisoner relied on prison officials to identify the officers and the
U.S. Marshals Service to effectuate service. On this record, it does not appear that
Schrubb’s failure to effect service was due to his own neglect or negligence.
Given these circumstances, we vacate the order and remand to the district court for
its reconsideration and analysis.
REVERSED and REMANDED.
14-15681 3

-- 3 of 3 --