                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            OCT 02 2015
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


KEVIN R. SCHRUBB, Sr.,                           No. 14-15681

              Plaintiff - Appellant,             D.C. No. 3:12-cv-00418-JSW

  v.
                                                 MEMORANDUM*
A. S. LOPEZ; M. BRYANT,

              Defendants - Appellees.


                    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


        *
             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).
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


                                            2                                     14-15681
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.




                                           3                                       14-15681
