David Wallace v. Roger Hickel Contracting, Inc. ( 2020 )

NOT FOR PUBLICATION FILED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).
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All pending requests made by Wallace in his opening brief are denied.
AFFIRMED.
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