David Wallace v. Roger Hickel Contracting, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 9, 2020
• Docket: 18-35859
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DAVID WALLACE No. 18-35859

Plaintiff-Appellant, D.C. No. 3:17-cv-00269-RRB

v. MEMORANDUM* ROGER HICKEL CONTRACTING, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the District of Alaska Ralph R. Beistline, District Judge, Presiding

Submitted June 2, 2020**

Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.

David Wallace appeals pro se from the district court’s judgment dismissing

his action alleging disability discrimination. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo the district court’s dismissal on the basis of the

applicable statute of limitations. O’Donnell v. Vencor Inc., 466 F.3d 1104, 1109

* 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). (9th Cir. 2006). We affirm.

The district court properly dismissed as time-barred Wallace’s action

because Wallace filed this action after the applicable statute of limitations had run

and failed to show extraordinary circumstances beyond his control that justified

equitable tolling. See 42 U.S.C. § 2000e-5(f)(1); 42 U.S.C. § 12117(a) (Americans

with Disabilities Act, borrowing from Title VII, provides for a ninety-day period to

sue after receiving a right-to-sue notice from the Equal Employment Opportunity

Commission); O’Donnell, 466 F.3d at 1111 (“[W]here a complaint is timely filed

and later dismissed, the timely filing of the complaint does not toll or suspend the

90-day limitations period.” (citation and internal quotation marks omitted)); Stoll v.

Runyon, 165 F.3d 1238, 1242 (9th Cir. 1999) (explaining that equitable tolling is

warranted “when extraordinary circumstances beyond the plaintiff’s control made

it impossible to file a claim on time”).

We lack jurisdiction to consider the district court’s orders denying Wallace’s

post-judgment motions because Wallace failed to file an amended or separate

notice of appeal. See Fed. R. App. P. 4(a)(4)(B)(ii); Harris v. Mangum, 863 F.3d

1133, 1137-38 n.1 (9th Cir. 2017).

We do not consider allegations raised for the first time on appeal. See

Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

2 18-35859 All pending requests made by Wallace in his opening brief are denied.

AFFIRMED.

3 18-35859