Clinton Spencer v. K. Klein

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 31 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

CLINTON LEE SPENCER, No. 16-16613

Plaintiff-Appellant, D.C. No. 4:16-cv-00032-RM

v.
MEMORANDUM*
K. KLEIN, Nursing Supervisor at Arizona
Department of Correction; et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Rosemary Marquez, District Judge, Presiding

Submitted May 24, 2017**

Before: THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.

Arizona state prisoner Clinton Lee Spencer appeals pro se from the district

court’s judgment dismissing for failure to effectuate service of process his 42

U.S.C. § 1983 action alleging deliberate indifference to his serious medical needs.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion.

In re Sheehan, 253 F.3d 507, 511 (9th Cir. 2001). We affirm.

Spencer failed to challenge the district court’s dismissal of his action for

failure to effectuate service of process, and has therefore waived any such

challenge. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal,

arguments not raised by a party in its opening brief are deemed waived.”); see also

Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We will not manufacture

arguments for an appellant . . . .”).

Even if Spencer had not waived this challenge, the district court did not

abuse its discretion by dismissing Spencer’s action for failure to effectuate service

of process because Spencer failed to identify an address at which defendant

Transue could be served, despite receiving an extension of time and being warned

of the consequences of failing to do so. See Fed. R. Civ. P. 4(m) (imposing 90-day

time limit to effect service absent showing of good cause); see also In re Sheehan,

253 F.3d at 512-13 (discussing good cause standard for extending time for service

under Fed. R. Civ. P. 4(m)).

We do not consider Spencer’s arguments regarding the merits of his claim

against Transue because the district court dismissed the action for failure to

effectuate service of process.

We do not consider arguments and allegations raised for the first time on

2 16-16613
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

3 16-16613