* After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. **See** Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Th e case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 18 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GARY B. SELF,

Plaintiff-Appellant, No. 03-6273

v. (D.C. No. 02-CV-1143-W) FRESENIUS MEDICAL CARE, a corporation, and SOS STAFFING SERVICES, a corporation,

Defendants-Appellees. (W.D. Oklahoma)

ORDER AND JUDGMENT *

Before EBEL , HENRY , and HARTZ , Circuit Judges.
Plaintiff Gary B. Self, appearing pro se, appeals t he district court’s dismissal without prejudice of his complaint for fa ilure to serve Fresenius Medical Care and SOS Staffing Services (Defendants) within 120 days of filing suit. Exercising jurisdiction under 28 U.S.C. § 12 91, we review for abuse of-2-

discretion, see Scott v. Hern , 216 F.3d 897, 912 (10th Cir. 2000), and AFFIRM the district court’s decision. Plaintiff filed suit in the United States District Court for the Western District of Oklahoma on August 19, 2002. According to the complaint: He was hired through SOS Staffing Services to work as a te mporary production employee in one of Fresenius’s plants, in Ogden, Utah. His employment at Fresenius was terminated on February 8, 2001. Although he was to ld that he was terminated due to excessive absences, he was discriminated againstin violation of the Americans with Disabilities Act (ADA). The Equal Employment Opportunity Commission chose not to pursue the matter. Plaintiff was permitted to proceed in forma pauperi s. After discovering that Plaintiff had not served Defendants, on Octobe r 28, 2002, the district court sent Plaintiff all paperwork necessary to allow the United States Marshal to effect service, along with completed samples of the paperw ork. The district court instructed Plaintiff to return the forms by Novembe r 12, 2002, and advised him that failure to do so could result in the dismissal of his suit. Rather than completing and returning the forms, on November 12, 2002, Plaintiff filed a motion for appointment of counsel , which the court denied the following day. The district court determined that Plaintiff’s complaint (which offered a well-expressed chronology of events) alle ged only that he was fired-3-

because of “absences caused by severe [viral] illne ss which [he had] no control over,” R., Doc. 1 at 5, rather than because of any disability as defined by the ADA. The district court found that Plaintiff was c apable of adequately presenting his ADA claim without assistance from counsel, desp ite his assertions that his ability to represent himself was hampered by “sever e anxiety and frequent migraine headaches triggered by psychological stres s,” R., Doc. 4. The court concluded that “in the absence of an affirmative sh owing of any likelihood of prevailing on the merits of his ADA claim [, Plaint iff] is not entitled to appointed counsel.” R., Doc. 5 at 3. After the district court denied his request for app ointed counsel, Plaintiff took no further action in the case, failing to serv e Defendants or complete the paperwork necessary for the marshals to do so. Thu s, on January 10, 2003, the district court, relying on its inherent power to co ntrol its docket, dismissed Plaintiff’s complaint without prejudice. Plaintiff appealed to this court. We held that before the district court may dismiss Plaintif f’s complaint without prejudice for failure to prosecute under Federal Rule of Civi l Procedure 4(m), it must first afford him an opportunity to show cause why the complaint should not be dismissed. See Self v. Fresenius Medical Care , No.03-6042, 2003 WL 21386499 (10th Cir. June 17, 2003) (citing Espinoza v. Unite d States , 52 F.3d 838, 841 (10th Cir. 1995)). Because we found no indication that the district court had-4-

inquired as to “whether the plaintiff has shown goo d cause for the failure to timely effect service,” id. (internal quotation marks omitted), we reversed an d remanded. On remand the district court ordered Plaintiff to appear at a hearing at 10:00 a.m. on August 27, 2003 “to show cause why he failed to timely complete and return the papers sent to him which would have enabled the United States Marshal to serve the defendants,” and advised Plain tiff “that his failure to appear at the designated time and date [would] result in d ismissal of [his] lawsuit.” R., Doc. 14 at 4. Instead of appearing at the hearing, on August 26, 2003, Plaintiff filed a written response to the district court’s or der, in which he again requested appointed counsel. Plaintiff explained that he had not completed the paperwork necessary to serve Defendants because if he had don e so without counsel, he “would have been immediately swamped with dismissal motions, summary judgment motions, discovery motions or other such c ourt proceedings I do not know how to handle and which I do not have the reso urces, energy, or physical or mental capacity to withstand.” R., Doc. 15 at 1. Plaintiff continued, “The physical and emotional stress this sort of abuse wo uld have imposed on me would have been unbearable and could induce a stroke.” I d. The district court reexamined the record and reaffi rmed its earlier determination that Plaintiff was not entitled to ap pointed counsel. It then held-5-

that Plaintiff had not adequately demonstrated good cause for failing to serve Defendants, and dismissed Plaintiff’s complaint without prejudice. Plaintiff again appealed to this Court. Plaintiff raises two issues on appeal. First, Plai ntiff contends that he showed good cause for his failure to serve process on Defendants within 120 days, and thus the district court abused its discre tion by dismissing his complaint. Second, Plaintiff contends that the district court abused its discretion in denying his request for appointed counsel by failing to rea d his complaint. Plaintiff recently made similar arguments in an att empt to justify his failure to serve a different defendant in another ADA suit. See Self v. Autoliv, ASP , 2003 WL 22436262 (10th Cir. Oct. 28, 2003) (“failur e to appoint counsel in a civil case does not constitute ‘good cause’ under Rule 4(m)”). Although in that case the district court had granted Plaintiff a sixty-day permissive extension prior to dismissing his complaint, dismissal without prej udice is also within the district court’s discretion. See Scott , 216 F.3d at 912. We reject Plaintiff’s arguments for substantially the same reasons outlined in the Autolivorder and judgment and in the district court’s August 28, 2003, order in t his case. AFFIRMED. ENTERED FOR THE COURT Harris L Hartz Circuit Judge