Opinion
3:23-cv-01536-YY
07-12-2024
JENNIFER J. PETERS, an Individual, Plaintiff, v. OREGON HEALTH AND SCIENCE UNIVERSITY, a Public Corporation and Governmental Entity, and DOES 1 THROUGH 50, Inclusive, Defendants.
FINDINGS AND RECOMMENDATIONS
YOU, MAGISTRATE JUDGE.
FINDINGS
Plaintiff Jennifer Peters brings this lawsuit against her former employer, defendant Oregon Health and Science University (“OHSU”), and Does 1 through 50, who are unnamed individuals identified as the members of OHSU's Vaccine Exception Review Committee (“VERC”). Plaintiff worked as a member of OHSU's administrative team and was terminated from her position for failing to comply with OHSU's COVID-19 vaccination policy after her request for a religious exception was denied. Plaintiff asserts that OHSU violated Title VII of the Civil Rights Act by discriminating against her on the basis of her religion. Plaintiff brings a 42 U.S.C. § 1983 claim against the Doe defendants based upon an alleged violation of the Free Exercise Clause of the First Amendment.
Defendants have filed a motion to dismiss plaintiff's § 1983 claim against the Doe defendants under Rule 12(b)(6). For the reasons set forth below, the motion should be GRANTED.
I. Motion to Dismiss Standard
To survive a motion to dismiss under Rule 12(b)(6), the complaint must contain facts that “state a claim to relief that is plausible on its face,” such that the court can reasonably infer the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In reviewing the plausibility of the complaint, the court must “accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” Capp v.Cty. of San Diego, 940 F.3d 1046, 1052 (9th Cir. 2019) (quoting Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005)). Conclusory allegations of law, however, are not entitled to a presumption of truth. Iqbal, 556 U.S. at 678-79. A complaint must be dismissed for failure to state a claim if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (internal quotation omitted).
II. Discussion
Plaintiff asserts a 42 U.S.C. § 1983 claim against the Doe defendants, which comprise the members of the VERC, alleging that they violated her First Amendment right to the free exercise of religion. Am. Compl. ¶ 62, ECF 10. Plaintiff contends that the VERC members “expressed overt hostility toward the religious beliefs” of OHSU employees, including plaintiff, by “categorically excluding them from receiving religious exceptions.” Id. ¶ 56. Plaintiff alleges that OHSU sent plaintiff and other employees an email stating that “social, political or economic philosophies or personal preferences are not considered to be religious beliefs, and will not qualify a member for a religious exception.” Id. ¶ 15, Ex. A. The email provides a list of “[e]xamples of beliefs that do not qualify for a religious exception,” which includes objections based on “bodily integrity or sanctity” and a “belief that the vaccine is ‘unclean.'” Id. ¶ 25, Ex. A. Additionally, plaintiff alleges that the VERC members declared that multiple religious organizations had approved of COVID-19 vaccines and thereby “pressur[ed] Plaintiff to conform to the prevailing approved religion” and “penalized Plaintiff for adhering to her sincere, religiously-based objections.” Id. ¶¶ 62-63.
Plaintiff submitted an exception request to OHSU, citing an objection based upon “bodily integrity” and the “belief that the vaccine is unclean.” Id. ¶ 25, Ex. B. The VERC denied plaintiff's exception request, again stating that those beliefs did not qualify as religious for the purposes of receiving an exception. Id. ¶ 23, Ex. C. OHSU placed plaintiff on unpaid leave, before ultimately terminating her employment due to her non-compliance with the vaccination policy. Id. ¶ 30, Ex. E.
Defendants contend that the Doe defendants are entitled to qualified immunity. Mot. Dismiss 7, ECF 13. In particular, they assert that plaintiff has not shown that the Doe defendants violated a “clearly established” right. Id.
A. Qualified Immunity Standard
Qualified immunity protects government officials from liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is an affirmative defense that must be raised by the defendant. Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001). A defendant may raise the defense of qualified immunity in a Rule 12(b)(6) motion to dismiss, but dismissal is not appropriate unless the court can determine “based on the complaint itself, that qualified immunity applies.” O'Brien v. Welty, 818 F.3d 920, 936 (9th Cir. 2016) (quoting Groten, 251 F.3d at 851).
Once a defendant has properly raised a qualified immunity defense, it is the plaintiff's burden to show “(1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.” Mohamed Sabra v.Maricopa Cty. Cmty. Coll. Dist., 44 F.4th 867, 886 (9th Cir. 2022) (internal quotation marks omitted). Courts may “exercise their sound discretion in deciding which of the two prongs . . . should be addressed first in light of the circumstances in the particular case at hand.” Pearson v.Callahan, 555 U.S. 223, 236 (2009).
A clearly established right is one that is sufficiently clear such that “every reasonable official would have understood that what he is doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015). In determining whether a right is clearly established, the Supreme Court has repeatedly cautioned courts not to define the law at a “high level of generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). Rather, the court analyzes whether the “violative nature of particular conduct is clearly established.” Id.; D.C. v. Wesby, 583 U.S. 48, 63 (2018) (“The rule's contours must be so well defined that it is clear to a reasonable officer that his conduct was unlawful in the situation he confronted. This requires a high degree of specificity.”) (internal quotations omitted).
The plaintiff need not produce “a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Jessop v. City of Fresno, 936 F.3d 937, 940 (9th Cir. 2019). It is insufficient for precedent to be merely suggestive of a legal principle; “[t]he precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply.” Perez v. City of Fresno, 98 F.4th 919, 924 (9th Cir. 2024) (quoting Wesby, 583 U.S. at 63).
Even in novel circumstances, officials may be on notice that their conduct violates established law where a constitutional principle applies with “obvious clarity to the specific conduct in question”-or, in other words, where the situation presents “mere application of settled law to a new factual permutation.” Dodge v. Evergreen Sch. Dist. #114, 56 F.4th 767, 784 (9th Cir. 2022); see also Deorle v. Rutherford, 272 F.3d 1272, 1286 (9th Cir. 2001) (“When the defendant['s] conduct is so patently violative of the constitutional right that reasonable officials would know without guidance from the courts that the action was unconstitutional, closely analogous pre-existing case law is not required to show that the law is clearly established.”) (internal quotation marks omitted). For instance, the Supreme Court discussed this principle in Taylor v. Riojas, 592 U.S. 7, 8 (2020), where it found that, even in the absence of a factually similar precedent, “under the extreme circumstances of this case,” no reasonable officer could have found that housing an inmate in “cells teeming with human waste for . . . six days” was constitutional. Id.
Thus, the salient question the court undertakes in analyzing qualified immunity is whether the state of the law was such that the defendants had a “fair warning” that their alleged actions were unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002). To demonstrate that level of notice, the plaintiff must point to controlling precedent “from the Ninth Circuit or Supreme Court” or otherwise a “consensus” of persuasive authority from other courts. Sharp v.Cty. of Orange, 871 F.3d 901, 911 (9th Cir. 2017); Evans v. Skolnik, 997 F.3d 1060, 1066 (9th Cir. 2021). This is a “demanding standard” and “protects ‘all but the plainly incompetent or those who knowingly violate the law.'” Perez, 98 F.4th at 924 (quoting Wesby, 583 U.S. at 63).
B. Application
As defendants have raised the defense of qualified immunity, the burden is now upon plaintiff to identify cases showing that the Doe defendants violated a right that was clearly established at the time of the conduct in question. Plaintiff offers the following cases which, she argues, promulgated “general constitutional rules” that were violated in this case. See Opp. 2, ECF 16.
Plaintiff first asserts that the Doe defendants violated clearly established law by failing to recognize her beliefs as religious beliefs, qualifying for First Amendment protections. Opp. 8, ECF 16 (citing United States v. Seeger, 380 U.S. 163 (1965)). Plaintiff contends that Seeger articulated the following test for evaluating whether beliefs are religious: the belief must “occup[y] in the life of its possessor a place parallel to that filled by . . . God.” Id. (quoting Seeger, 380 U.S. at 176). Plaintiff argues that her beliefs as stated in her exception request “easily meet that standard” and should have been accepted as religious beliefs by the Doe defendants. Id.
In Seeger, the Supreme Court determined that three conscientious objectors qualified for exception from military service because, although they had not articulated beliefs that strictly conformed to the language of the exception statute, they had conveyed sincerely held beliefs that were, “in [their] own scheme of things, religious.” See Seeger, 380 U.S. at 185, 187. Defendants do not dispute plaintiff's characterization of the test promulgated by Seeger. Reply 9, ECF 19. Rather, defendants argue that Seeger did not provide guidance on how this standard would apply to vaccination exception requests. Id.
Indeed, the test set forth in Seeger would not have put the Doe defendants on notice that their actions were unconstitutional. To the contrary, Seeger affirms the ability of the Doe defendants to evaluate exception requests to determine if they are based on sincere, religious beliefs. Furthermore, Seeger examined exception requests in the context of conscientious objections to military service, and would not have aided the Doe defendants in understanding the constitutionality of rejecting certain vaccination exception requests.
Plaintiff next posits that the law prohibits officials from “forc[ing] citizens to confess by word or act their faith therein.” Opp. 9-10, ECF 16 (citing W.Va. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)). Plaintiff asserts that the Doe defendants violated this principle by attempting to coerce her, under the threat of the loss of her employment, “to confess by act her faith in the vaccines.” Id. at 10. In Barnette, the Supreme Court held that the First Amendment prohibited schools from requiring students to salute the American flag and recite a pledge of allegiance to the United States. 319 U.S. at 642. Notably, plaintiff does not allege a claim based on compelled speech or action in her complaint. Nonetheless, Barnette does not bear on the Doe defendants' actions. A school mandate requiring students to salute a flag is not comparable to a hospital mandate requiring employees to obtain a vaccination. Thus, the holding in Barnettewould not have apprised the Doe defendants of the unconstitutionality of their actions.
Plaintiff cites Sch. Dist. of Abington Tp. v. Schempp, another case concerning First Amendment protections in schools, for the proposition that individuals cannot be pressured to “conform to the prevailing approved religion.” Opp. 10, ECF 16 (quoting Schempp, 374 U.S. 203, 221 (1963)). Plaintiff argues that the Doe defendants showed impermissible preferential treatment towards certain religions, by declaring that some beliefs about COVID-19 vaccines would not qualify for an exception. Id. (citing Schempp, 374 U.S. at 216).
In Schempp, the Supreme Court struck down state policies mandating bible reading or prayer in public schools. 374 U.S. at 223. In so holding, the Court emphasized that these exercises were “prescribed as part of the curricular activities of students who are required by law to attend school” and “held in the school buildings under the supervision and with the participation of teachers employed in those schools.” Id. Schempp is so factually distinct from the instant case, it provides no rule of law applicable to the Doe defendants' actions. Plaintiff has not alleged, for example, that the Doe defendants prescribed participation in religious activities, as the defendants did in Schempp. Reasonable officials in the Doe defendants' position would not have understood Schempp to provide guidance on the constitutionality of their actions.
Plaintiff next cites several cases concerning unemployment benefits. Opp. 10, ECF 16 (citing Thomas v. Rev. Bd. of Ind. Emp't Sec. Div., 450 U.S. 707 (1981), Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136 (1987), Frazee v. Ill. Dep't of Emp't Sec., 489 U.S. 829 (1989)). Plaintiff relies on these cases for the proposition that “[w]here the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where [the state] denies such a benefit because of conduct mandated by a religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden on religion exists.” Id. (quoting Thomas, 450 U.S. 717-18). These cases concerned the constitutionality of the denial of public benefits by states. See Thomas, 450 U.S. at 720 (holding that the denial of unemployment benefits to an individual who left his job due to his religious beliefs violated the Free Exercise Clause); Hobbie, 480 U.S. at 143-44 (holding that the partial denial of unemployment benefits to an individual who was terminated due to religious beliefs she adopted after beginning her employment violated the Free Exercise Clause); Frazee, 489 U.S. at 829 (holding that the denial of unemployment benefits to an individual who declined a job offer citing his religious beliefs, although those beliefs were not aligned with an established religious sect, violated the Free Exercise Clause). Plaintiff has not shown that a reasonable official would have understood these cases to apply here, given that public benefits are not at issue.
Plaintiff next asserts it is plainly established that an individual's “interpretation of a governmental edict being a tool of the Antichrist is religious in nature and thus protected under the Free Exercise Clause” pursuant to Callahan v. Woods, 658 F.2d 679, 687 (9th Cir. 1981). Opp. 13, ECF 16. Callahan concerned a father's objection to the requirement that he register his daughter for a social security number in order to obtain welfare benefits. 658 F.2d at 682. The father believed that social security numbers were a “mark of the beast” and accepting a number would be serving the Antichrist. See id. The Ninth Circuit held that the plaintiff's belief was “plainly religious within the meaning of the First Amendment.” Id. at 686. The court did not decide whether the government had shown a compelling interest for mandating social security numbers to obtain welfare benefits and, instead, remanded that issue to the trial court. Id. at 687.
Plaintiff contends that the Doe defendants should have known that her belief that the COVID-19 vaccine was a “mark of the beast,” i.e., associated with the Antichrist, was religious and warranted First Amendment protections. Opp. 12-13, ECF 16. Plaintiff further asserts that OHSU did not have a compelling interest that justified burdening her religious belief because the nature of her job would have permitted her to work remotely and she “would have posed no danger to OHSU's other employees or patients due to being unvaccinated.” Id. at 13 (citing Sherbert v. Verner, 374 U.S. 398, 402 (1963)); Am. Compl. ¶ 28, ECF 10.
Because Callahan pertained to an objection to identification numbers in order to receive welfare benefits, it is not clear that reasonable officials would have understood that case to prohibit the denial of plaintiff's request for an exception from a vaccine mandate. Additionally, because the Ninth Circuit did not undertake a compelling interest analysis in Callahan, that case could not have put the Doe defendants on notice as to whether there was a compelling interest in the instant case. The other case cited by plaintiff, Sherbert v. Verner, is likewise inapposite because it does not concern the balance of equities at issue in this case. 374 U.S. at 407 (finding the state did not have a compelling interest in denying unemployment benefits to a claimant who objected to Saturday work).
Plaintiff then relies on a case addressing the constitutionality of an emergency order regarding worship during the COVID-19 pandemic, Roman Catholic Diocese of Brooklyn v.Cuomo, 592 U.S. 14 (2020). Opp. 13, ECF 16. Plaintiff asserts that the Doe defendants impermissibly burdened religion because their actions were not narrowly tailored, in that they proscribed more religious conduct than necessary to achieve their ends. Id. at 14 (citing Churchof Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533 (1993)). Specifically, plaintiff argues that, given she was permitted to work remotely at the start of the COVID-19 pandemic, OHSU could have continued to employ her remotely, eliminating any risk to OHSU's employees and patients derived from her being unvaccinated. Id.; Am. Compl. ¶¶ 17, 28, ECF 10. Plaintiff further argues that the Doe defendants violated the First Amendment by targeting certain beliefs, including the belief that COVID-19 vaccines were “unclean,” for harsh treatment. Opp. 14-15, ECF 16.
In Cuomo, the Supreme Court addressed the unconstitutionality of restrictions that explicitly limited attendance in houses of worship while permitting some secular businesses to admit “as many people as they wish[ed].” Cuomo, 592 U.S. at 17 (2020). The Supreme Court described the regulations in Cuomo as “far more restrictive than any COVID-related regulations that have previously come before the Court, much tighter than those adopted by many other jurisdictions hard-hit by the pandemic, and far more severe than has been shown to be required to prevent the spread of the virus at the applicants' services.” Id. at 18. Cuomo is categorically different from the instant case because it concerned the inequitable application of occupancy restrictions-this in no way bears on the permissibility of determining whether certain beliefs are religious. Plaintiff has not shown that Cuomo would have informed the Doe defendants' understanding of the constitutionality of their actions.
Plaintiff also asserts that the Doe defendants violated the prohibition on “viewpoint discrimination” when they denied religious exceptions to individuals who believed COVID-19 vaccines to be “unclean,” contrary to Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995). Opp. 15, ECF 16. At the outset, it should be noted that the doctrine of viewpoint discrimination, as discussed in Rosenberger, is rooted in the First Amendment's protections for freedom of speech and expression. 515 U.S. at 828. Thus, this line of argument departs from plaintiff's complaint, which exclusively alleges a violation of the Free Exercise Clause against the Doe defendants. Am. Compl. ¶¶ 55-56, ECF 12. Moreover, the Rosenberger decision concerned the denial of printing reimbursements for a student-run religious publication. 515 U.S. at 827. Again, the claims in Rosenberger are so disparate from plaintiff's claim that the case provides no rule of law pertaining to the constitutionality of the Doe defendants' actions in the instant case.
Plaintiff next cites a case analyzing Title VII of the Civil Rights Act. Opp. 16, ECF 16 (citing Equal Emp't Opportunity Comm'n v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768 (2015)). As plaintiff herself acknowledges, religious protections under Title VII are not commensurate with the protections under the First Amendment. Id.; see also Conner v. Tilton, No. 07-CV-4965-MMC, 2009 WL 4642392, at *6 (N.D. Cal. Dec. 2, 2009), aff'd, 430 Fed.Appx. 617 (9th Cir. 2011) (“The standard applied to determine whether a particular set of beliefs qualifies as a religion for purposes of Title VII, however, is broader than that applicable in the context of the First Amendment.”). Because Abercrombie & Fitch exclusively discusses Title VII, it is not instructive on how a reasonable official would have understood the contours of the First Amendment.
The issue presented by defendants' motion to dismiss is not novel. On seven other occasions, judges in this district have evaluated whether qualified immunity bars claims against VERC members. And in each of those cases, the judges concluded that the plaintiffs had not provided precedent showing that the VERC members would have been on notice that their conduct was unlawful, and concluded that qualified immunity barred the plaintiffs' claims. See MacDonald v. Oregon Health & Sci. Univ., No. 3:22-CV-01942-IM, 2023 WL 5529959, at *11 (D. Or. Aug. 28, 2023); Trusov v. Or. Health & Sci. Univ., No. 3:23-CV-77-SI, 2023 WL 6147251, at *10 (D. Or. Sep. 20, 2023); Mathisen v. Oregon Health & Sci. Univ., No. 3:22-CV-1250-SI, 2023 WL 6147099, at *9 (D. Or. Sept. 20, 2023); Jimenez-Mendez v. Oregon Health &Sci. Univ., No. 3:23-CV-01190-IM, 2024 WL 326598, at *7 (D. Or. Jan. 29, 2024); Hancock v.Oregon Health & Sci. Univ., No. 3:22-CV-01254-AN, 2024 WL 493715, at *6 (D. Or. Feb. 8, 2024); Babiy v. Oregon Health & Sci. Univ., No. 3:23-CV-01562-HZ, 2024 WL 1770485, at *7 (D. Or. Apr. 22, 2024); Khimich v. Oregon Health & Sci. Univ., No. 3:23-cv-01239-YY (Amended Findings and Recommendations, June 3, 2024).
Furthermore, as other judges in this district have noted in factually similar cases, the actions of the VERC are not so obviously infringing or egregious as to justify finding a violation of established law based on general constitutional principles. See MacDonald, 2023 WL 5529959 at *11 (“This is not such an obvious or egregious case where, notwithstanding the lack of judicial guidance, the Board and VERC Defendants' conduct was so clearly violative of a constitutional right that they should have known their actions were unconstitutional.”); Mathisen, 2023 WL 6147099 at *9 (same); Jimenez-Mendez, 2024 WL 326598 at *5, n.3 (same). To the contrary, the law as it existed provided a basis for the Doe defendants to believe in the constitutionality of their actions. For instance, the law is unequivocal that constitutional protections only extend to sincere religious beliefs. Thomas, 450 U.S. at 713 (“Only beliefs rooted in religion are protected by the Free Exercise Clause, which, by its terms, gives special protection to the exercise of religion.”); Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994).
Moreover, there is a consensus among courts that an individual's claim may be evaluated to ensure it reflects a sincere religious belief, rather than a personal preference. See, e.g., Fallon v.Mercy Cath. Med. Ctr. of Se. Pennsylvania, 877 F.3d 487, 489, 494 (3d Cir. 2017) (upholding a hospital's determination that an employee had not stated a religious belief justifying exception from a mandatory flu vaccine); Vinning-El v. Evans, 657 F.3d 591, 594 (7th Cir. 2011) (“A prison is entitled to ensure that a given claim reflects a sincere religious belief, rather than a preference for the way a given diet tastes ....”). Thus, the state of the law would not have put the Doe defendants on notice that their conduct was unconstitutional.
Because plaintiff has not shown that the Doe defendants violated a clearly established right, the court need not determine whether they acted constitutionally. Qualified immunity bars plaintiff's § 1983 claim against the Doe defendants.
Plaintiff seeks declaratory and injunctive relief in addition to damages for her § 1983 claim. Am. Compl. 12, ECF 10. Qualified immunity only bars claims for damages and does not apply to requests for declaratory or injunctive relief. See Daniels Sharpsmart, Inc. v. Smith, 889 F.3d 608, 616 (9th Cir. 2018); Hydrick v. Hunter, 669 F.3d 937, 940 (9th Cir. 2012). However, plaintiff does not specify anywhere in the complaint what declaratory or injunctive relief she seeks. The prayer states only that, “on all causes of action,” plaintiff demands “declaratory and injunctive relief against the members of the VERC, as stated supra.” Id. (capitalization removed). Id. This statement does not specify a course of action that could be granted.
Moreover, on a claim for injunctive relief, the plaintiff must identify as a defendant the individual who “can appropriately respond to the injunctive relief.” See Colwell v. Bannister, 763 F.3d 1060, 1070 (9th Cir. 2014) (quoting Hartmann v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013)); Pouncil v. Tilton, 704 F.3d 568, 576 (9th Cir. 2012) (holding that the proper defendant was the individual “responsible for ensuring that injunctive relief was carried out”); see also Santos Garcia v. San Bernardino Sheriff's Dep't, No. 5:21-cv-01414-JGB-JDE, 2020 WL 8365260, at *6 (C.D. Cal. Dec. 8, 2020) (dismissing claim for injunctive relief where the plaintiff had not alleged that the defendants could provide the relief he sought). The complaint contains no allegations showing how the Doe defendants are capable of providing whatever injunctive or declaratory relief that plaintiff might seek. For instance, nothing in the complaint suggests that VERC members have authority over employment matters beyond reviewing vaccine exception requests. Therefore, to the extent plaintiff seeks declaratory and injunctive relief in the context of her § 1983 claim, that aspect of the claim should be dismissed without prejudice. Should plaintiff later identify a claim for declaratory or injunctive relief, she can file a motion to amend, which may or may not be granted, depending on the circumstances and merits.
RECOMMENDATIONS
Defendants' motion to dismiss, ECF 13, should be GRANTED and plaintiff's § 1983 claim should be dismissed. To the extent plaintiff seeks damages, the claim should be dismissed with prejudice, and to the extent she seeks declaratory and injunctive relief, that aspect of the claim should be dismissed without prejudice.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Monday, June 17, 2024. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.