Lori Massey v. Pierce County Sheriffs Departm

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 28 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LORI ANNA MASSEY, No. 20-35717

Plaintiff-Appellant, D.C. No. 3:19-cv-05421-RBL

v. MEMORANDUM* PIERCE COUNTY SHERIFF’S DEPARTMENT; KIMBERLY DAWN KLEMME, Pierce County Sheriff’s Deputy, in individual and official capacity,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

Submitted July 19, 2021**

Before: SCHROEDER, SILVERMAN, and MURGUIA, Circuit Judges.

Massey’s motions for permission to proceed IFP (Docket Entry Nos. 3 and

6-1) are granted.

Lori Anna Massey appeals pro se from the district court’s order dismissing

* 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). her 42 U.S.C. § 1983 action alleging excessive force for failure to pay the filing fee

after denying Massey’s motion to proceed in forma pauperis (“IFP”). We have

jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion the

denial of leave to proceed IFP, and de novo a determination that a complaint lacks

arguable substance in law or fact. Tripati v. First Nat’l Bank & Tr., 821 F.2d

1368, 1369 (9th Cir. 1987). We affirm.

The district court properly denied Massey’s motion to proceed IFP because

her § 1983 claim lacked legal merit due to being barred by the statute of

limitations. See Wash. Rev. Code § 4.16.080(2) (statute of limitations for personal

injury claim); Lukovsky v. City & County of San Francisco, 535 F.3d 1044, 1048-

49 (9th Cir. 2008) (forum state’s statute of limitations for personal injury actions

applies to § 1983 claim); Tripati, 821 F.2d at 1370 (district court may deny leave

to proceed IFP “at the outset if it appears from the face of the proposed complaint

that the action is frivolous or without merit”).

Contrary to Massey’s contention, Massey is not entitled to equitable tolling

because she failed to allege facts demonstrating that she diligently pursued her

legal rights and that some extraordinary circumstance prevented a timely filing.

See Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013) (explaining elements

necessary for equitable tolling).

We do not consider matters not specifically and distinctly raised and argued

2 20-35717 in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Massey’s motion for appointment of counsel (Docket Entry No. 6-2) is

denied.

AFFIRMED.

3 20-35717