Mark Daviscourt v. United States of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK DAVISCOURT,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
No. 21-35160
D.C. No. 2:20-cv-00720-RSM
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Submitted May 17, 2022**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Mark Daviscourt appeals pro se from the district court’s judgment
dismissing his action brought under the Federal Tort Claims Act (“FTCA”). We
have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Redlin v.
* 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
JUN 1 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 21-35160
U.S., 921 F.3d 1133, 1138 (9th Cir. 2019). We may affirm on any basis supported
by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We
affirm.
The district court properly dismissed Daviscourt’s action as untimely
because Daviscourt failed to present his claim to the appropriate agency within two
years after the claim accrued and failed to allege facts sufficient to show that he
was entitled to equitable tolling. See 28 U.S.C. § 2401(b) (two-year statute of
limitations under the FTCA); Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013)
(en banc) (explaining elements necessary for equitable tolling); Johnson v. Lucent
Techs. Inc., 653 F.3d 1000, 1010 (9th Cir. 2011) (equitable tolling based on mental
incompetence requires a plaintiff to show diligence in pursuing claims and to
explain how the impairment made it impossible to meet a filing deadline).
The district court did not abuse its discretion by dismissing Daviscourt’s
action without leave to amend because amendment would have been futile due to
claim preclusion arising from Daviscourt’s previous litigation in 2018. See
Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011)
(setting forth standard of review and explaining that dismissal without leave to
amend is proper when amendment would be futile); Stewart v. U.S. Bancorp, 297
F.3d 953, 956 (9th Cir. 2002) (explaining the requirements of federal claim
preclusion).

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Daviscourt’s motion to supplement the record (Docket Entry No. 8) is
denied.
Daviscourt’s other pending motions and requests, set forth in his opening
and reply briefs, are denied.
AFFIRMED.

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