                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 03 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



JOHN V. COLEN,                                    No. 08-55978

               Plaintiff - Appellant,             D.C. No. 5:07-cv-01359-RSWL-
                                                  RNB
   v.

UNITED STATES OF AMERICA; et al.,                 MEMORANDUM *

               Defendants - Appellees.



                     Appeal from the United States District Court
                        for the Central District of California
                     Ronald S.W. Lew, District Judge, Presiding

                             Submitted February 16, 2010 **


Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.


        John V. Colen appeals pro se from the district court’s judgment dismissing

his 42 U.S.C. § 1983 action for failure to prosecute. We have jurisdiction pursuant

          *
             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).

PDM/Research
to 28 U.S.C. § 1291. We review for abuse of discretion, Pagtalunan v. Galaza,

291 F.3d 639, 640 (9th Cir. 2002), and we affirm.

       The district court did not abuse its discretion by dismissing the action,

without prejudice, after warning Colen to comply with Federal Rule of Civil

Procedure 4(m) and timely serve defendants, providing him an opportunity to

demonstrate good cause when he failed to do so, and properly weighing the

pertinent factors for dismissal. See Oyama v. Sheenan (In re Sheehan), 253 F.3d

507, 512 (9th Cir. 2001) (affirming lower court’s holding that there was no good

cause shown to extend the service period where plaintiff failed to show party to be

served received actual notice of the lawsuit, that defendant would suffer no

prejudice, and that plaintiff would be severely prejudiced if his complaint were

dismissed); Pagtalunan, 291 F.3d at 642-43 (discussing factors that courts must

consider in determining whether to dismiss for failure to prosecute or to comply

with a court order).

       The district court properly determined that Colen’s attempt to appeal from a

nonappealable order did not divest the district court of jurisdiction or toll the time-

period for effectuating service, especially in light of the district court’s explicit

warnings to Colen that it retained jurisdiction. See Estate of Conners v. O’Connor,

6 F.3d 656, 658 (9th Cir. 1993) (stating that filing a notice of appeal from a


PDM/Research                                2                                      08-55978
nonappealable order does not effect a transfer of jurisdiction from the district court

to the court of appeals).

       Colen’s remaining contentions are unpersuasive.

       AFFIRMED.




PDM/Research                               3                                    08-55978
