Lori Anna Massey v. Pierce County Sheriff’s Department

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORI ANNA MASSEY,
Plaintiff-Appellant,
v.
PIERCE COUNTY SHERIFF’S
DEPARTMENT; KIMBERLY DAWN
KLEMME, Pierce County Sheriff’s Deputy,
in individual and official capacity,
Defendants-Appellees.
No. 20-35717
D.C. No. 3:19-cv-05421-RBL
MEMORANDUM*
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).
FILED
JUL 28 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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

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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.

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