                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 15 2011

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




                             FOR THE NINTH CIRCUIT



MALCOLM L. GRAY,                                 No. 10-15962

               Plaintiff - Appellant,            D.C. No. 2:07-cv-01379-PMP-
                                                 LRL
  v.

HOWARD SKOLNIK, Director of                      MEMORANDUM *
NDOC; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                      Philip M. Pro, District Judge, Presiding

                              Submitted July 12, 2011 **

Before:        SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.

       Nevada state prisoner Malcolm L. Gray appeals pro se from the district

court’s order denying his Fed. R. Civ. P. 60(b) motion for relief from the order

dismissing his 42 U.S.C. § 1983 action for failure to serve defendants with the


          *
             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).
summons and complaint. We have jurisdiction under 28 U.S.C. § 1291. We

review for an abuse of discretion, see Ahanchian v. Xenon Pictures, Inc., 624 F.3d

1253, 1258 (9th Cir. 2010), and we affirm in part, vacate in part, and remand.

      The district court granted an extension of time and issued a notice to show

cause before dismissing Gray’s claims against defendants Holmes, Venneman,

Willis, and Ruebart, and Gray failed to show good cause or excusable neglect for

his failure to serve them. Thus, the district court did not abuse its discretion in

denying the Rule 60(b) motion as to the claims against these defendants. See

Oyama v. Sheehan (In re Sheehan), 253 F.3d 507, 512 (9th Cir. 2001) (discussing

the good cause standard).

      By contrast, as to Gray’s claims against the remaining defendants, Gray

received a notice to show cause suggesting that those defendants were properly

served, and the district court dismissed the claims against those defendants without

warning or explanation. See Pioneer Inv. Servs. v. Brunswick Assocs. Ltd., 507

U.S. 380, 395 (1993) (listing four factors relevant to Rule 60(b)(1) motions);

Lemoge v. United States, 587 F.3d 1188, 1192-95 (9th Cir. 2009) (district court

abused its discretion by failing to apply the relevant factors to a Rule 60(b)(1)

motion seeking reconsideration of a dismissal for failure to effect timely service).




                                           2                                    10-15962
Accordingly, we vacate the dismissal as to the remaining defendants and remand

for further proceedings.

      Gray shall bear his own costs on appeal.

      AFFIRMED in part, VACATED in part, AND REMANDED.




                                        3                                10-15962
