                                                                            FILED
                             NOT FOR PUBLICATION                             JUN 02 2016

                                                                         MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


MICHAEL A. ALSTON,                               No. 14-15209

                Plaintiff - Appellant,           D.C. No. 2:13-cv-00850-MHB

 v.
                                                 MEMORANDUM*
BRADLEY FOSTER; et al.,

                Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                   Michelle H. Burns, Magistrate Judge, Presiding**

                               Submitted May 24, 2016***

Before:         REINHARDT, W. FLETCHER, and OWENS, Circuit Judges.

      Michael A. Alston appeals pro se from the district court’s order dismissing

for lack of prosecution under Fed. R. Civ. P. 41(b) his employment action. We


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

          **The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review for an abuse of discretion. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th

Cir. 1986). We affirm.

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

without prejudice because Alston failed to establish good cause for his failure to

serve the summons and complaint in a proper manner. See Fed. R. Civ. P. 4(m)

(pre-2015 amendment requires service within 120 days after the complaint is

filed); Ash v. Cvetkov, 739 F.2d 493, 495-97 (9th Cir. 1984) (listing factors to

consider before dismissing an action for failure to prosecute, and explaining that

“dismissal without prejudice is a more easily justified sanction for failure to

prosecute”); see also In re Sheehan, 253 F.3d 507, 512-13 (9th Cir. 2001)

(discussing good cause and district court’s broad discretion to extend time for

service or to dismiss the action without prejudice).

      The district court did not abuse its discretion by denying Alston’s motion for

appointment of counsel because Alston did not demonstrate exceptional

circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting

forth standard of review and exceptional circumstances requirement for

appointment of counsel); Johnson v. U.S. Treasury Dep’t, 27 F.3d 415, 416-17(9th

Cir. 1994) (listing factors for courts to consider when appointing counsel in an

employment discrimination action).


                                           2                                      14-15209
      We reject as without merit Alston’s argument that the clerk of the district

court failed in its obligation to direct the U.S. Marshals Service to serve defendants

once the district court permitted Alston to proceed in forma pauperis.

      AFFIRMED.




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