FILED
NOT FOR PUBLICATION JUL 07 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD ABERCROMBIE, No. 14-16675
Plaintiff - Appellant, D.C. No. 1:11-cv-00048-GSA
v.
MEMORANDUM*
RICHARD M. KAUT, Dr.,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Gary S. Austin, Magistrate Judge, Presiding**
Submitted June 22, 2015***
Before: HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.
California state prisoner Richard Abercrombie appeals pro se from the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Abercrombie 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).
district court’s judgment in his 42 U.S.C. § 1983 action alleging deliberate
indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.
§ 1291. We review for an abuse of discretion a district court’s dismissal for failure
to serve the summons and the complaint in a timely manner. Puett v. Blandford,
912 F.2d 270, 273 (9th Cir. 1990). We affirm.
The district court did not abuse its discretion in dismissing Abercrombie’s
action without prejudice because, despite being given opportunities to locate
defendant and being warned that dismissal would result if he failed to provide the
United States Marshal with a valid current address, Abercrombie failed to serve the
summons and the complaint on Kaut in a timely manner. See Fed. R. Civ. P. 4(m)
(requiring service within 120 days of the filing of the complaint); Walker v.
Summer, 14 F.3d 1415, 1421-22 (9th Cir. 1994) (the prisoner must provide the
United States Marshal with sufficient information to serve the defendant),
overruled on other grounds by Sandin v. Conner, 515 U.S. 472, 483-84 (1995).
Abercrombie’s contention that he was subjected to cruel and unusual
punishment as a result of attempting to serve Kaut is unpersuasive.
We do not consider the documents attached to Abercrombie’s opening brief
because they were not presented below. See United States v. Elias, 921 F.2d 870,
874 (9th Cir. 1990) (“Documents or facts not presented to the district court are not
2 14-16675
part of the record on appeal.”).
AFFIRMED.
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