James Mosley v. CHRISTOPHER BAGNATO On Appeal from the United States District Court for the Eastern…

NOT PRECEDENTIAL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.

-- 1 of 3 --

2
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 of 3 --

3
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.

-- 3 of 3 --