1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE DISTRICT OF ALASKA

3

4 CHANTEL MITCHELL,

5 Plaintiff,

6 v. Case No. 3:22-cv-00183-SLG-KFR

7 OFFICE DEPOT, INC.,

8 Defendant.

9 FINDINGS AND RECOMMENDATIONS ON 10 MOTION TO DISMISS UNDER 12(b)(6)

11 The Court recommends Defendants’ Rule 12(b)(6) Motion to Dismiss at Docket

12 23 be GRANTED. Plaintiff’s Amended Complaint is time-barred. Plaintiff has not

13 met her burden in proving that she diligently pursued her rights and that

14 extraordinary circumstances prevented her from timely filing.

15 I. Procedural History and Motions Presented

16 On August 9, 2022, Chantell Mitchell (“Plaintiff”), a self-represen ted litigant,

17 filed a civil complaint alleging employment discrimination under 42 U.S.C. §2000e,

18 et seq., and denial of civil rights under

, by Defendant Office Depot,

19 Inc.1 The Court screened Plaintiff’s Complaint and dismissed each claim with leave

20 to amend. As to Plaintiff’s employment discrimination claim, the Court dismissed

21 this claim because Plaintiff’s Complaint did not demonstrate she had obtained the

22 required Notice of Right to Sue from the Equal Employment Opportunity Commission

23 (“EEOC”), also known as a “‘Right to Sue’ letter.”2 The Court dismissed Plaintiff’s

24 § 1983 claim because her Complaint failed to state a permissible state actor who 25 violated her civil rights.3 26

27 1 Doc. 1 at 7-10. 2 Doc. 8. 28 3 Id. 1 In response, Plaintiff filed a Right to Sue letter,4 voluntarily dismissed her

2 § 1983 claim,5 and filed her Amended Complaint limiting her suit to a 42 U.S.C.

3 §2000e employment discrimination claim.6 Plaintiff seeks in her Amended

4 Complaint “$8,000,000.00 (or the highest amount the court can authorize)” in

5 damages.7

6 The Court issued an Order directing service and response.8 Defendant was

7 properly served and filed the present Motion to Dismiss under Federal Rule of Civil

8 Procedure 12(b)(6) on July 27, 2023, arguing that Plaintiff’s claim is time barred.9

9 Plaintiff responded in opposition, and Defendants replied.10

10 In reaching its findings and making its recommendations, the Court has

11 considered all relevant filings. Oral argument on the Motion to Dismiss is not

12 necessary.

13 II. Relevant Proffered Facts 14 Plaintiff’s Amended Complaint raises one cause of action: employment 15 discrimination in violation of 42 U.S.C. §2000e, et. seq. Specifically, Plaintiff alleges 16 that her former employer, Defendant Office Depot, Inc., discriminated against her 17 by failing to promote her because of her race or color.11 18 Plaintiff filed a discrimination complaint against Defendant on February 28, 19 2020, with the Anchorage Equal Rights Commission (“AERC”) and authorized the 20 AERC to release her information to the EEOC.12 The AERC completed its 21 investigation, determined Plaintiff’s allegation were not supported by substantial 22 evidence, and closed Plaintiff’s case on January 11, 2022.13 23 4 Doc. 9. 24 5 Doc. 11 6 Doc. 13. 25 7 Id. at 14. 8 Doc. 19. 26 9 Docs. 21 and 23. 10 Docs. 24-25 and 27. 27 11 Doc. 13 at 14. 12 Doc. 23-2. 28 13 Doc. 23-3. 1 Plaintiff sought reconsideration of AERC’s denial of her complaint, which the

2 AERC denied.14 The EEOC subsequently adopted AERC’s determination on April 22,

3 2022, and notified Plaintiff in its “Right to Sue letter” that she had 90 days to file

4 suit.15 Plaintiff received the letter on May 2, 2022, meaning that the statutory 90-

5 day window closed on July 31, 2021.16 Pla intiff filed her federal lawsuit on August 9,

6 2022, nine days beyond the statutory period.17

7 III. Applicable Law

8 a. Motion to Dismiss under Rule (12)(b)(6)

9 Federal Rule of Civil Procedure 12(b)(6) authorizes the Court to dismiss a

10 complaint that fails “to state a claim upon which relief can be granted.” The Court

11 may dismiss a complaint either because it lacks a cognizable legal theory or because

12 it lacks sufficient factual allegations to support a cognizable legal theory.18

13 On a Rule 12(b)(6) motion to dismiss, the Court accepts all well-pleaded 14 factual allegations as true and construes them in the light most favorable to the 15 nonmoving party.19 The Court may not dismiss a “complaint containing allegations 16 that, if proven, present a winning case ... no matter how unlikely such winning 17 outcome may appear to the district court.”20 Nonetheless, “conclusory allegations of 18 law and unwarranted inferences are insufficient to defeat a motion to dismiss.”21 19 “[O]nly pleaded facts, as opposed to legal conclusions, are entitled to assumption of 20 the truth.”22 21 A “formulaic recitation of the elements of a cause of action” will not defeat a 22 motion to dismiss.23 The complaint must contain sufficient factual matter, accepted

23 14 Doc. 23-4. 15 Doc. 13 at 16-17. 24 16 Id. at 15. 17 Doc. 12 at 2-3. 25 18 Conservation Force v. Salazar,

(9th Cir. 2011). 19 Sateriale v. R.J. Reynolds Tobacco Co.,

(9th Cir. 2012) (citation omitted). 26 20 Balderas v. Countrywide Bank, N.A.,

(9th Cir. 2011). 21 Fayer v. Vaughn,

(9th Cir. 2011) (citations omitted). 27 22 United States v. Corinthian Colls.,

(9th Cir. 2011) (citation omitted). 23 Bell Atl. Corp. v. Twombly,

(2007) (internal citations and quotations 28 omitted). 1 as true, to “state a claim to relief that is plausible on its face.”24 “The plausibility

2 standard ... asks for more than a sheer possibility that a defendant has acted

3 unlawfully. Where a complaint pleads facts that are ‘merely consistent with’ a

4 defendant’s liability, it ‘stops short of the line between possibility and plausibility of

5 entitlement to relief.’”25 Moreover, the Co urt need not accept as true allegations that

6 contradict the complaint's exhibits, documents incorporated by reference, or

7 matters properly subject to judicial notice.26

8 b. Timing Requirements for Filing Suit

9 Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000e, prohibits

10 employment discrimination based on race, color, religion, sex, and national origin.27

11 Before bringing a claim under 42 U.S.C. § 2000e, a plaintiff must file an agency

12 complaint with either the EEOC or the equivalent state agency, such as the Alaska

13 State Commission for Human Rights (ASCHR).28 If the agency complaint is eligible, 14 it may be shared and cross-filed between the ASCHR and the EEOC, and each agency 15 may complete their own investigation.29 Regardless of how the agency complaint 16 originates, a litigant generally cannot proceed to federal court without a Notice of 17 Right to Sue from the EEOC (“‘Right to Sue’ letter”). 18 After receiving a “Right to Sue” letter, Plaintiff may file suit under

2000e in federal district court. A sufficiently pled claim under 42 U.S.C. § 2000e 20 must allege the following elements: (1) the plaintiff belongs to a protected class 21 (such as race); (2) the plaintiff was qualified for her position; (3) the plaintiff was 22 subject to an “adverse employment action”; and (4) other similar individuals were 23 either treated more favorable or the position was filled by someone outside the 24 24 Ashcroft v. Iqbal,

(2009) (quoting Twombly,

). 25 25 Iqbal,

(quoting Twombly, 550 U.S. at 556–57). 26 Lazy Y Ranch Ltd. v. Behrens,

(9th Cir. 2008); Sprewell v. Golden State 26 Warriors,

(9th Cir. 2001). 27 42 U.S.C. § 2000e. 27 28 42 U.S.C. § 2000e-5(e) (Complaints must be filed with the (1) EEOC within 180 days or (2) ASHRC within 300 days of the incident.). 28 29 See 42 U.S.C. § 2000e-5. 1 plaintiff’s protected class.30 Suits must generally be brought within 90 days of

2 receipt of the Right to Sue letter.31

3 Failure to obtain a federal “Right to Sue” letter or filing a claim outside of the

4 90-day window does not preclude federal jurisdiction. While Title VII requires that

5 plaintiffs timely exhaust administrativ e remedies, “filing a timely charge of

6 discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal

7 court, but a requirement that, like a statute of limitations, is subject to waiver,

8 estoppel, and equitable tolling.”32 Title VII’s timeliness provision remains separate

9 from Title VII’s jurisdictional provisions and “does not speak in jurisdictional terms

10 or refer in any way to the jurisdiction of the district courts.”33

11 Equitable tolling is “unavailable in most cases.”34 “[T]he threshold necessary

12 to trigger equitable tolling ... is very high, lest the exceptions swallow the rule.”35 To

13 establish equitable tolling, Plaintiff must show “(1) that [s]he has been pursuing 14 h[er] rights diligently, and (2) that some extraordinary circumstance stood in her 15 way.”36 “Equitable tolling applies ... when extraordinary circumstances beyond the 16 plaintiff's control made it impossible to file a claim on time.”37 For instance, courts 17 may toll deadlines “because of deception, fraud, or error, as long as the petitioner 18 acts with due diligence in discovering the deception, fraud, or error.”38 19 A plaintiff is not entitled to equitable tolling based on a showing of either 20 extraordinary circumstances or diligence alone; the plaintiff must establish both.39 21 30 See Reynaga v. Roseburg Forest Prod.,

(9th Cir. 2017) (quoting Metoyer 22 v. Chassman,

(9th Cir. 2007)). 31 Ioane v. Hawaii,

,

, at *1 (9th Cir. 2001). 23 32 Zipes v. Trans World Airlines, Inc.,

(1982). 33

. 24 34 Miranda v. Castro,

(9th Cir. 2002); see also Irwin v. Dep't of Veterans Affairs,

(1990) (courts apply the doctrine of equitable tolling “sparingly.”). 25 35 Miranda,

(internal quotation and citation omitted). 36 Pace v. DiGuglielmo,

(2005). 26 37 Stoll v. Runyon,

(9th Cir. 1999) (citation omitted). 38 Lona v. Barr,

(9th Cir. 2020) (quoting Iturribarria v. INS,

889, 897 (9th Cir. 2003)); Dartora v. United States,

, 828 (E.D.Wash., 2021). 28 39 Pace,

. 1 The Ninth Circuit has instructed that “relief from strict construction of a statute of

2 limitations is readily available in extreme cases” but that “[c]ourts have been

3 generally unforgiving, however, when a late filing is due to claimant’s failure ‘to

4 exercise due diligence in preserving his legal rights.’”40

5 IV. Motion to Dismiss for Failure to S tate a Claim Under 12(b)(6)

6 a. Arguments

7 According to Plaintiff’s Amended Complaint, she received her “Right to Sue

8 letter” on May 2, 2022.41 Plaintiff filed her complaint 99 days after receipt of this

9 letter, nine days after the statutory deadline had passed. Plaintiff argues that the

10 circumstances surrounding her late-filed complaint were unavoidable and offers

11 several reasons in support of this argument for equitable tolling.42

12 First, Plaintiff states she was “diagnosed with COVID-19 during the allocated

13 90 day window to file her claim and suffered various symptoms that inhibited her 14 from being capable of completing her claim on time.”43 Second, Plaintiff states that 15 her COVID-19 symptoms “made it impossible for her to physically or mentally focus 16 on anything other than recovering.”44 Finally, Plaintiff says she always planned to 17 file her complaint during the last week of the 90 day period and that filing it early 18 was not feasible because she worked full time,45 and “spent a considerable amount 19 of time seeking counsel [] and researching federal law before ultimately deciding to 20 draft the Complaint herself and proceed as a Pro Se Litigant.”46

21 40 Scholar v. Pac. Bell,

(9th Cir. 1992) (affirming denial of equitable tolling in Title VII action) (quoting Irwin,

). 22 41 Doc. 13 at 15. 42 Doc. 24 at 4. 23 43

44 Id. at 7. 24 45 Id. at 10. 46 Id. at 9. In support of her arguments, Plaintiff cites several court cases, all but one of 25 which are out district cases and not binding on this Court. Plaintiff cites Page v. Houser,

, at *1, a 2020 case from this district. Page involved an extension pursuant 26 to Federal Rule of Appellate Procedure 4(a)(5)(A). The standard under that rule requires a timely filed motion to extend and a showing of excusable neglect or good cause. That 27 standard differs starkly from the higher standard Plaintiff must overcome for her statute of limitations claim, which requires her to show that the delay was caused by an “extraordinary 28 circumstance.” 1 Defendant argues that equitable tolling is not warranted because Plaintiff has

2 not met her burden in proving that her case is not the “garden variety” type of

3 excusable neglect to overcome the justification for equitable tolling.47 In support of

4 that contention, Defendant makes multiple arguments. First, Defendant’s claim that

5 Plaintiff had ample time before she w as diagnosed with COVID-19 to file her

6 Complaint,48 as well as 11 days after.49 Second, Defendant argue that Plaintiff failed

7 to exercise due diligence in filing her complaint, and that seeking counsel during

8 that time and conducting legal research do not constitute “extraordinary

9 circumstances” warranting tolling.50 Third, Defendant asserts that Plaintiff’s self-

10 diagnosis of post-viral fatigue and fatigue do not warrant equitable tolling or explain

11 why she was unable to file her two-and-a-half-page complaint during the 11 days

12 after her quarantine period.51 Fourth, Defendants argue that the cases cited by

13 Plaintiff are either not applicable or not binding on this Court. Finally, Defendant 14 state that COIVD-19 in 2022 was substantially different than in 2020 and 2021, 15 which is the timeframe of the caselaw Plaintiff relies in part on52, and that an 16 otherwise healthy 30-year-old contracting COVID-19 does not constitute 17 extraordinary circumstances warranting tolling.53 18 b. Analysis 19 The Court does not find that Plaintiff has met the standard for equitable 20 tolling. Based on the record before it, Plaintiff cannot demonstrate that 21 extraordinary circumstances stood in the way of her timely filing and that she 22 pursued her rights diligently as defined under the law. 23 Plaintiff offers two general justifications for missing the filing deadline. The 24 first involves her COVID-19 illness, which both directly incapacitated Plaintiff, and

25 47 Doc. 23 at 6-8 48 Doc. 23 at 9 and Doc. 27 at 5-7. 26 49 Doc. 27 at 6. 50 Doc. 23 at 9; Doc. 27 at 7. 27 51 Doc. 27 at 4-5. 52 Doc. 27 at 3. 28 53 Docs. 23 at 10 and 27. 1 whose lingering effects prevented her from meaningfully preparing and filing her

2 claim within the 90-day window. Second, Plaintiff claims that she delayed filing her

3 complaint because she worked full time, was seeking counsel, and was conducting

4 legal research. The Court does not find either of these justifications to rise to the

5 level of an extraordinary circumstance.

6 The Court has reviewed decisions of courts in this district, as well as others,

7 in analyzing the circumstances under which the COVID-19 pandemic may justify

8 equitable tolling. Specifically, courts have held that although the COVID-19

9 pandemic itself was extraordinary, to avoid dismissal via equitable tolling, a plaintiff

10 must plead facts indicating that it was the pandemic that caused the untimely

11 filing.54 Plaintiff has not done that in this case.

12 Plaintiff argues that the COVID-19 pandemic presented extraordinary

13 circumstances beyond her control. However, she fails to allege any facts that the 14 pandemic itself was the cause of her failure to timely file.55 Furthermore, she does 15 not present sufficient facts to support the argument that her illness, as opposed to 16 the pandemic, “made it impossible” to initiate her lawsuit within the 90-day 17 18 19 20 54 See, e.g., Smith v. United States,

, *4 (W.D. Wash. 2021), report and 21 recommendation adopted,

(W.D. Wash. 2022) (“[A]lthough a plaintiff may be able to show that circumstances related to COVID-19 are sufficiently extraordinary to 22 trigger equitable tolling, the COVID-19 pandemic does not automatically warrant equitable tolling for any plaintiff who seeks it on that basis, because the plaintiff must establish ... 23 that the COVID-19 pandemic specifically prevented him from filing his claim.”) (cleaned up); United States v. Melara,

, *3 (D. Mass. 2022) (“[T]he COVID-19 pandemic 24 is not an adequate excuse for an untimely filing if a petitioner has not ... shown a specific difficulty to submit a timely filing.”); United States v. Turner,

, *3 (W.D.

), report and recommendation adopted,

(W.D. Ark. 2021) (“The COVID-19 pandemic does not automatically warrant equitable tolling for any movant who 26 seeks it on that basis. The movant must establish he was pursuing his rights diligently and that the COVID-19 pandemic specifically prevented him from filing this motion.”) 27 55 See Lewis v. Postmaster Gen. of United States,

, *2 (3d Cir. 2022) (“Although Lewis alleges that Covid-19 was the cause of the EEOC's delayed response, he 28 fails to connect the pandemic to his specific situation.”). 1 period.56 Plaintiff asserts that COVID made her “physically or mentally debilitated”57

2 and “made it impossible for her to physically or mentally focus on anything other

3 than recovering.”58 However, by Plaintiff’s own admission she was working during

4 this period, attempting to hire an attorney, and conducting legal research. A mere

5 claim of having had COVID-19 and being s ubsequently affected by it are insufficient

6 to establish “extraordinary circumstances.”59

7 Even if the Court were to fully credit Plaintiff’s claims regarding COVID and

8 its lingering impact on her, this would still not rise to one of the rare cases in which

9 extraordinary circumstances would justify equitable tolling. There is nothing in

10 Plaintiff’s complaint demonstrating that her illness prevented Plaintiff from

11 pursuing her claim.60 To rise to the level of extraordinary circumstances, illnesses

12 must generally be so severe as to render someone totally incapable or incompetent

13 to file a claim.61 Those are not the facts in this case. 14 56 Williams v. Santos,

, *4 (C.D. Cal. 2022); see also Gomez v. Henry Street 15 Settlement,

, at *6 (S.D.N.Y. July 27, 2021) (“Similarly, the disruption caused by the COVID-19 pandemic – which of course affected all New Yorkers in the spring 16 of 2020, not just plaintiff – is not, standing alone, ‘sufficient to warrant equitable tolling’ absent a more specific personal showing (for example, that a specific government-imposed 17 restriction prevented him from meeting his filing deadline).”) (citing Hood v. Catholic Health Systems, Inc.,

, at *3-5 (W.D.N.Y. September 28, 2020). 18 57 Doc. 24 at 6. 58

. 19 59 Cole v. Shinn,

, at *8 (D.Ariz. 2023) (“[A] positive Covid-19 test result does not, in of itself, constitute an extraordinary circumstance.”); see also Dominicus v. 20 Burton, No. CV 21–2797–VBF (JEM),

, at *4 (C.D. Cal. July 2, 2021) (finding “Petitioner's allegations regarding his COVID-19 diagnosis” inadequate to establish 21 equitable tolling for additional time because the allegations were “wholly conclusory, [and] unsubstantiated”); United States v. Sayetsitty, Nos. CR 94–243 PCT RCB & CIV 05–1580 PCT 22 RCB (JI),

, at *9 (D. Ariz. Apr. 17, 2006 & June 19, 2006) (“Movant asserts that he has contracted a virus in the prison, resulting in various symptoms. However, 23 Movant does not assert how these symptoms commenced, when they terminated, or how they kept him from filing a timely motion. Movant fails to make out a claim for equitable 24 tolling on this issue.”). 60 See, e.g., Lopez v. Citibank, N.A.,

, 906–07 (1st Cir. 1987) (holding that where 25 the plaintiff was able to pursue his claim despite illness, equitable tolling was not warranted); see also Moody v. Bayliner Marine Corp.,

(E.D.N.C. 1987) 26 (holding that panic disorder suffered by plaintiff did not constitute “exceptional circumstances” such that she was prevented from pursuing her claim). 27 61 See Biester v. Midwest Health Services, Inc.,

(10th Cir. 1996); see also Vlad-Berindan v. LifeWorx, Inc.,

, at *7 (E.D.N.Y. Apr. 28, 2014) (finding 28 1 Furthermore, Plaintiff’s argument that her full time work and attempts to

2 retain counsel similarly fall short of the standard necessary to find extraordinary

3 circumstances. The Court cannot find that failed attempts to retain counsel

4 constitute extraordinary circumstances.62 Plaintiff’s situation can hardly be

5 considered “extraordinary” given that mo st non-legally trained Plaintiffs seeking to

6 file suit would find themselves similarly situated – attempting to pursue legal action,

7 and possibly retain counsel, while also balancing the demands of full-time

8 employment. Indeed, given that Plaintiff did in fact file her complaint nine days

9 after the filing deadline had passed, it is not apparent that Plaintiff’s attempts to

10 hire an attorney or her full time work deprived her of the ability to file her

11 complaint.63

12 In addition to finding that extraordinary circumstances do not exist in this

13 case, the Court also finds that Plaintiff was not reasonably diligent in pursuing her 14 claim. Plaintiff’s claim that she intended to wait until the final week of the 90 day 15 period before filing is in the Court’s view evidence of procrastination, as opposed to 16 diligent pursuit. As Defendant argues, even if the Court were to fully credit 17 Plaintiff’s claims about the debilitating nature of her COVID-19 illness, Plaintiff lost 18 only a limited time to the virus, and had time before and after her illness to pursue 19 equitable tolling were plaintiff “was unable to manage her affairs and…was incapable of 20 comprehending her legal rights.”, aff'd sub nom. Vlad-Berindan v. Life Worx Inc.,

(2d Cir. 2015); DaCosta v. Union Local 306,

, at *11 (S.D.N.Y. 21 Aug. 12, 2009) (plaintiff was not entitled to equitable tolling where he failed to show that his paranoid schizophrenia, anxiety, frustration, anger, and memory troubles were so severe 22 that they rendered him unable to pursue his legal rights); Victorial v. Burge,

(S.D.N.Y. 2007) (litigant was required to “demonstrate some form of incapacitation 23 due to the mental illness that affected his ability to act with due diligence during the time period at issue”). 24 62 See e.g. Crocker v. WellStar Health System, Inc.,

(N.D.Georgia March 2, 2021) (finding no equitable tolling were retained counsel withdrew after 30 days, leaving 25 Plaintiff 60 days to hire new counsel or file pro se complaint). 63 See Brown v. John Deere Prod., Inc.,

(11th Cir. 26 2012) (equitable tolling not justified where the facts do not indicate that the alleged challenges deprived Plaintiff of the ability to timely file); see also Martin v. Piedmont 27 Airlines,

(D.D.C. 2013) (declining to invoke equitable tolling where the pro se litigant “attribute[d] his delay to his inability to obtain legal advice ... or to retain 28 legal counsel”). 1 | her claim. That time was sufficient and Plaintiff’s failure to timely file can only be 2 | considered a failure to diligently pursue her claim.°4 3 V. Conclusion 4 Plaintiff must establish both that “extraordinary circumstances” prohibited 5 | her timely filing of a Complaint and that she acted with reasonable diligence in 6 | pursuing her claims to qualify for equitable tolling.®5 The Court finds that Plaintiff 7 | has not alleged sufficient facts to establish either. Equitable tolling based on the 8 | COVID-19 pandemic and attendant circumstances is inappropriate in this case, the 9 | Court cannot find that “extraordinary circumstances” prevented her from timely 10 | filing her Complaint, or that she pursued her filing reasonably diligently. Plaintiff, 11 | therefore, fails to state a claim upon which relief may be granted under Rule 12 | 12(b)(6). The Court therefore recommends that Defendants Motion to Dismiss be 13 | GRANTED. 14 15 DATED this 17 day of November, 2023 at Anefferag¢>Alaska. ot 16 O/ ED LRS Wee \S YM SO a a b 18 Unite@ state es Strate Judge DistricNg? AfaSka 19 20 51 NOTICE OF RIGHT TO OBJECT Under

(b)(1), a district court may designate a magistrate judge 22 to hear and determine matters pending before the Court. For dispositive matters, a 23 magistrate judge reports findings of fact and provides recommendations to the 24 25 26 | — SS 64 See Scholar,

(“Even if we accept Ms. Scholar's statements as fact, she still 27 | had 76-83 days in which to preserve her legal rights; Ms. Scholar offers no explanation as to why this was not sufficient time in which to commence her action.”) 28 || 6 Pace,

. Report and Recommendation on Motion to Dismiss 11 Mitchell v. Office Depot, Inc.

1 presiding district court judge.66 A district court judge may accept, reject, or modify,

2 in whole or in part, the magistrate judge’s order.67

3 A party may file written objections to the magistrate judge’s order within 14

4 fourteen days.68 Objections and responses are limited to five (5) pages in length and

5 should not merely reargue positions prev iously presented. Rather, objections and

6 responses should specifically identify the findings or recommendations objected to,

7 the basis of the objection, and any legal authority in support. Reports and

8 recommendations are not appealable orders. Any notice of appeal pursuant to Fed.

9 R. App. P. 4(a)(1) should not be filed until entry of the district court’s judgment.69

10

11

12

13 14 15 16 17 18 19 20 21 22 23 24 25 26 66

(b)(1)(B). 27 67

(b)(1)(C). 68

28 69 See Hilliard v. Kincheloe,

(9th Cir. 1986).