                                                                            FILED
                             NOT FOR PUBLICATION                             JUL 05 2011

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




                             FOR THE NINTH CIRCUIT



MARVIN G. HOLLIS,                                No. 10-15613

               Plaintiff - Appellant,            D.C. No. 3:08-cv-03154-TEH

  v.
                                                 MEMORANDUM *
D. HERRICK; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Northern District of California
                   Thelton E. Henderson, District Judge, Presiding

                              Submitted June 15, 2011 **

Before:        CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.

       California state prisoner Marvin G. Hollis appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging First Amendment

retaliation and due process claims. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo the district court’s dismissal under Federal Rule of Civil

          *
             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).
Procedure 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We

review for an abuse of discretion the district court’s dismissal for failure to serve a

summons in a timely manner. Oyama v. Sheehan (In re Sheehan), 253 F.3d 507,

511 (9th Cir. 2001). We affirm in part, vacate in part, and remand.

      The district court properly dismissed Hollis’s retaliation claims against

defendants Selby, Schlitz, and Rankin for failure to state a claim because the

complaint contained only “labels and conclusions, and a formulaic recitation of the

elements of [the] cause of action” and was not “plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).

      The district court dismissed Hollis’s claims against defendant Herrick on the

ground that the summons that the United States Marshal attempted to serve was

returned unexecuted. There is no indication in the record that the district court

considered whether there was good cause for the failure to serve, or whether,

absent good cause, an extension was warranted. See Fed. R. Civ. P. 4(m); Mann v.

Am. Airlines, 324 F.3d 1088, 1090 & n.2 (9th Cir. 2003). Accordingly, we vacate

and remand for the district court to consider these issues.

      The district court also did not expressly address Hollis’s allegations that he

was denied his due process rights. We vacate and remand for the district court to

consider this claim in the first instance.


                                             2                                    10-15613
      Hollis’s remaining contentions are unavailing.

      We treat Hollis’s motion for judicial notice as citation of supplemental

authorities pursuant to Fed. R. App. P. 28(j).

      Defendants shall bear the costs on appeal.

      AFFIRMED in part, VACATED in part, and REMANDED.




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