Anthony Carter, Sr. v. MARMON KEYSTONE On Appeal from the United States District Court for the District of…

BLD-045 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3746
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ANTHONY CARTER, SR.,
Appellant
v.
MARMON KEYSTONE
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civ. No. 09-cv-00044)
District Judge: Honorable Stewart A. Dalzell
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
November 13, 2009
Before: MCKEE, RENDELL and CHAGARES, Circuit Judges
(Opinion filed: January 13, 2010 )
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OPINION
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PER CURIAM.
On January 21, 2009, Anthony Carter, Sr., filed a motion to proceed in forma
pauperis and pro se complaint in the United States District Court for the District of
Delaware asserting claims of employment discrimination under Title VII of the Civil

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Rights Act of 1964 against defendant Marmon Keystone. According to the complaint, the
alleged discriminatory acts (harassment and discrimination based on race) took place on
February 13, 2004, those acts are not continuing, and Carter received a right-to-sue letter
from the Equal Employment Opportunity Commission on April 5, 2005. The District
Court granted Carter leave to proceed in forma pauperis and dismissed his complaint
under 28 U.S.C. § 1915(e)(2). The District Court observed that Carter had ninety days to
file a complaint after receipt of the April 2005 right-to-sue letter, but he untimely filed his
complaint in January 2009. Carter timely filed this appeal.
We have appellate jurisdiction under 28 U.S.C. § 1291. Our review of the District
Court’s § 1915(e)(2) dismissal is plenary. Allah v. Seiverling, 229 F.3d 220 (3d Cir.
2000). After a careful review of the record, we conclude that this appeal presents “no
substantial question,” 3d Cir. IOP Ch. 10.6, and thus we will summarily affirm the
District Court’s judgment.
As the District Court explained, a claim brought under Title VII must be filed
within ninety days of plaintiff’s receipt of the right-to-sue letter. See 42 U.S.C.
§ 2000e-5(f)(1); McGovern v. City of Phila., 554 F.3d 114, 115 n. 1 (3d Cir. 2009). We
regard the ninety-day filing period as a statute of limitations, making it subject to the
doctrine of equitable tolling. Burgh v. Borough Council of the Borough of Montrose, 251
F.3d 465, 470 (3d Cir. 2001). Equitable tolling is generally appropriate in Title VII cases
only when “the defendant has actively misled the plaintiff; when the plaintiff ‘in some

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extraordinary way’ was prevented from asserting her rights; or when the plaintiff timely
asserted her rights in the wrong forum.” Seitzinger v. Reading Hosp. and Med. Ctr., 165
F.3d 236, 240 (3d Cir. 1999) (citations omitted). Plaintiff bears the burden to show that
equitable tolling is warranted. Podobnik v. U.S. Postal Serv., 409 F.3d 584, 591 (3d Cir.
2005).
Carter offers no viable argument at all for an equitable tolling of the limitations
period, and his complaint, as plainly indicated on its face, was filed well after expiration
of the ninety-day period to bring suit. While the statute of limitations ordinarily must be
raised as an affirmative defense, and is subject to principles of waiver if not timely
asserted, a district court has authority to dismiss an in forma pauperis complaint sua
sponte under § 1915(e) if the limitations defense is obvious from the complaint, and no
development of the factual record is required. See Fogle v. Pierson, 435 F.3d 1252, 1258
(10th Cir. 2006); see also Eriline Co. S.A. v. Johnson, 440 F.3d 648, 656-57 (4th Cir.
2006). The District Court properly invoked that authority here.
We note that Carter appears to have filed his untimely complaint in an effort to
obtain review on the merits after the District Court dismissed his previous Title VII suit
based on the same right-to-sue letter. This Court affirmed the dismissal of that prior
complaint because Carter “was given two opportunities to properly effect service of
process or obtain a waiver of service from Marmon Keystone,” but he “failed to comply
with the requirements of Rule 4 on either occasion.” Carter v. Marmon Keystone, 278

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Fed. Appx. 141, 142 (3d Cir. 2008) (per curiam). The District Court did not err here in
refusing Carter another “bite at the apple” through the filing of this untimely Title VII
complaint.
For these reasons, the District Court’s judgment will be affirmed.
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