Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Brian Tracey Hill, Corcoran, CA, pro se.
Appeal from the United States District Court for the Northern District of California; Susan Yvonne Illston, District Judge, Presiding.
Before SCHROEDER, Chief Judge, RAWLINSON, and CALLAHAN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Brian Tracey Hill, a former California state prisoner, appeals pro se the district
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court's judgment dismissing his 42 U.S.C. § 1983 action pursuant to Fed.R.Civ.P. 4(m) for failure to timely serve process. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion, Oyama v. Sheehan (In re Sheehan), 253 F.3d 507, 511 (9th Cir.2001), and we affirm.
Because Hill did not serve process on defendants for over ten months after filing his complaint, the district court did not abuse its discretion by dismissing Hill's action under Rule 4(m). See Hason v. Med. Bd. of Cal., 279 F.3d 1167, 1174 (9th Cir.2002). Hill was not entitled to service of process by the United States Marshal because he was not proceeding in forma pauperis. See Fed.R.Civ.P. 4(c)(2). Hill's assertion that he was so entitled, pursuant to 28 U.S.C. § 1921(c)(2) and 28 C.F.R. § 0.114, is unavailing, because these provisions merely discuss the fees appropriate for service by the United States Marshal.
The district court's denial of Hill's Fed.R.Civ.P. 60(b) motion is not an issue on appeal because Hill did not amend his notice of appeal to include the August 15, 2003 order. See Fed. R.App. P. 4(a)(4)(A)(B)(ii).
AFFIRMED.