2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-3-2012

Bangura v. Elwyn Inc

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-2716

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Recommended Citation

"Bangura v. Elwyn Inc" (2012). 2012 Decisions. Paper 320.

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1

GLD-289 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-2716

___________

BAKARR BANGURA,

Appellant

v.

ELWYN, INC.

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 2-11-cv-02793)

District Judge: Honorable Lawrence F. Stengel

____________________________________

Submitted for Possible Summary Action 

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

September 20, 2012

Before: FUENTES, GREENAWAY, JR., and BARRY, Circuit Judges

(Opinion filed: October 3, 2012)

_________

OPINION

_________

PER CURIAM

Bakarr Bangura appeals from the District Court’s order dismissing his amended 

complaint against his former employer Elwyn, Inc. (“Elwyn”). We will affirm.

Bangura filed suit pro se alleging that Elwyn terminated him on the basis of his 
2

Senegalese national origin. Bangura used a form employment discrimination complaint. 

The first page states that “This action is brought for discrimination in employment 

pursuant to (check only those that apply). . . .” The page then lists four options, including 

Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act 

(“PHRA”), 43 Pa. Cons. Stat. §§ 951-963. Bangura did not check the options for Title 

VII or any other federal statute and instead checked only the option for the PHRA. 

Elwyn filed a motion to dismiss Bangura’s complaint on the sole ground that his 

PHRA claim is barred as a matter of state law. Bangura, in turn, requested counsel. The 

District Court granted that request, but Bangura later filed a “declination of attorney” and 

elected to respond to Elwyn’s motion pro se.1

 The District Court later granted Elwyn’s 

motion and dismissed Bangura’s complaint on the basis of state law. Bangura appealed, 

and we vacated and remanded because our review did not reveal any basis for the District 

Court to have exercised subject matter jurisdiction. See Bangura v. Elwyn, Inc., 461 F. 

App’x 87, 88 (3d Cir. 2012). We explained that Bangura had not invoked Title VII or 

any other federal statute in his complaint, and we directed the District Court to consider 

the basis for its jurisdiction. See id.

On remand, the District Court granted Bangura leave to “amend his complaint to 

state a basis for federal jurisdiction[.]” (Dist. Ct. Docket No. 21.) In doing so, the court 

referred Bangura to the portion of our opinion discussing the jurisdictional issue, 

 

 1 Bangura’s declination stated in relevant part: “This correspondence will confirm that 

you provided me with legal representation . . . and I am opting or wish to decline your 

offer. This is because I think I can better represent my self [sic] in such a sensitive case.” 

(Dist. Ct. Docket No. 13.)
3

including our discussion of Title VII. Bangura then filed an amended complaint, which 

was identical to his original complaint except that it omitted his previous factual 

statement and added a prayer for relief. Once again, Bangura neither checked the box 

pertaining to Title VII or any other federal statute nor mentioned any such statute in the 

amended complaint. Elwyn filed another motion to dismiss, and Bangura responded with 

two “motions for hearing.” The first merely requested a hearing on the merits of his 

claim. The second was identical, except that Bangura included for the first time the 

assertion that “[t]he basis for jurisdiction is employment discrimination based on ethnic 

origin as highlighted in Title VII[.]” (Dist. Ct. Docket No. 27.) 

By order entered June 12, 2012, the District Court granted Elwyn’s motion and 

dismissed the amended complaint for lack of subject matter jurisdiction. The District 

Court also explained that, if it had jurisdiction, it would have dismissed the amended 

complaint because Bangura did not file his original complaint within 90 days of the date 

on which he alleged he had received a right-to-sue letter from the Equal Employment 

Opportunity Commission. See 42 U.S.C. § 2000e-5(f)(1). Bangura appeals.

2

Bangura asserts that the District Court had jurisdiction because he brought a claim 

under Title VII, but he raises no argument that the District Court erred in assessing that 

issue and we perceive no such error. In particular, Bangura does not argue that the 

 2 On the same day that Bangura filed his notice of appeal, he also filed another identical 

“motion for hearing” and a motion for counsel in the District Court. Those motions 

remain pending. They do not reference the District Court’s order or otherwise seek 

reconsideration, and their pendency thus does not prevent us from exercising appellate 

jurisdiction, which we have pursuant to 28 U.S.C. § 1291.
4

District Court should have construed his second “motion for hearing” as a motion for 

leave to file another amended complaint, and we cannot say that the District Court abused 

its discretion in that regard. Both we and the District Court specifically advised Bangura 

of the jurisdictional issue and the possibility of asserting a claim under Title VII, but 

Bangura chose not to do so in his amended complaint. Bangura also did not request leave 

to further amend his complaint, and none of his filings reveals a colorable attempt to 

assert a federal claim. Pro se filings generally must be liberally construed, but we cannot 

fault the District Court for declining to give Bangura a third opportunity to assert a 

federal claim under these circumstances, particularly after he expressly declined the 

appointment of counsel.

For these reasons, we will affirm the District Court’s dismissal of Bangura’s 

amended complaint for lack of subject matter jurisdiction. Because the District Court 

lacked subject matter jurisdiction, its alternative analysis of the merits of the 90-day issue 

is without legal effect.3

 3 Bangura asserts for the first time on appeal that he instituted a state-court action within 

those 90 days by filing a praecipe for a writ of summons against Elwyn with the 

Pennsylvania Court of Common Pleas for Delaware County. He has not specified the 

nature or status of that proceeding, but the court’s electronic docket suggests that it 

remains pending. State courts have concurrent jurisdiction over Title VII claims. See

Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 826 (1990); Bailey v. Storlazzi, 729 

A.2d 1206, 1209 n.6 (Pa. Super. Ct. 1999) (citing Yellow Freight). Our ruling is thus 

without prejudice to Bangura’s ability to pursue a Title VII claim in state court, though 

we express no opinion on the merits of any such claim or on whether it is otherwise 

proper for him to assert one to the extent he might not already have done so.