James Mosley v. Christopher Bagnato

• Court: Court of Appeals for the Third Circuit
• Decided: January 22, 2024
• Docket: 23-2792
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-2792 __________

JAMES MOSLEY, Appellant

v.

CHRISTOPHER BAGNATO ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2-23-cv-02996) District Judge: Honorable Mia R. Perez ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) January 17, 2024 Before: JORDAN, PHIPPS, and NYGAARD, Circuit Judges

(Opinion filed: January 22, 2024) ___________

OPINION * ___________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Pro se Appellant James Mosley filed his Complaint alleging that Defendant

Christopher Bagnato discriminated against him on the basis of his race by sending him a

letter that Mosley found to be offensive. Mosley is African-American, and alleges that

Bagnato is of Spanish descent. He seeks injunctive relief as well as compensatory and

punitive damages. Upon review under 28 U.S.C. § 1915(e)(2)(B)(ii), the District Court

sua sponte dismissed the Complaint with prejudice for failure to state a claim. Mosley

timely filed his appeal.

We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review of the

District Court’s sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to

state a claim. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). “We accept all

factual allegations as true [and] construe the complaint in the light most favorable to the

plaintiff.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (quoting

Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).

We agree with the District Court’s disposition in this case. To properly assert a

claim under § 1983, a plaintiff “must establish that she was deprived of a federal

constitutional or statutory right by a state actor.” Kach v. Hose, 589 F.3d 626, 646 (3d

Cir. 2009). Bagnato is a private attorney, and Mosley fails to introduce any allegation or

factual material that would cause the Court to consider him a state actor. See Angelico v.

Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999). We likewise agree with the

District Court that, to the extent that Mosley relied on theories of alleged discrimination

2 on the bases of medical disability or age (which he did not raise in his appellate brief), he

failed to plead a plausible claim for relief. Finally, in his brief, Mosley suggests that

Bagnato’s letter violated his rights under 42 U.S.C. § 1981. An appellant may not raise

new claims on appeal, see Webb v. City of Phila., 562 F.3d 256, 263 (3d Cir. 2009), but,

even if it were otherwise, Mosley has not meaningfully alleged that Bagnato violated his

rights “to make and enforce contracts, to sue… and to the full and equal benefit of all

laws and proceedings for the security of personal and property as is enjoyed by white

citizens.” 42 U.S.C. § 1981(a); see also Comcast Corp. v. Nat. Ass’n of African

American-Owned Media, 140 S.Ct. 1009, 1019 (2020) (explaining that § 1981 requires a

plaintiff to show that “but for race, [he] would not have suffered the loss of a legally

protected right”).

For these reasons, we will affirm the District Court’s judgment.