CLD-243                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                         No. 13-1432
                                         ___________

                                     PAUL CHULHIE KIM,
                                                 Appellant

                                             v.

                           INTERNAL REVENUE SERVICE
                       ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                               (D.C. Civil No. 13-cv-00363)
                     District Judge: Honorable Edmund V. Ludwig
                      ____________________________________

                  Submitted for Possible Summary Action Pursuant to
                       Third Circuit LAR 27.4 and I.O.P. 10.6
                                    May 16, 2013
             Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges

                               (Opinion filed: June 13, 2013)
                                        _________

                                         OPINION
                                         _________

PER CURIAM

       Paul Chulhie Kim appeals pro se from the District Court‟s order dismissing his

complaint. Because the appeal presents no substantial question, we will summarily

affirm the District Court‟s order.

                                             I.
      In 2013, Kim filed an employment discrimination complaint in the United States

District Court for the Eastern District of Pennsylvania. In the complaint, Kim claimed

that the Internal Revenue Service wrongfully failed to hire him twenty-four years ago

when he attended a “job session” in Philadelphia in order to gain employment as a

computer data entry clerk. Complaint, ¶ III.B-C. Kim claimed that, as a result of his

unemployment, he has suffered various health ailments, including starvation, kidney

failure, pneumonia, cancer, and mental illness. 

Kim sought $20,000,000

in monetary compensation to “restore [his] trust in the American people and restore

confidence in [his] natural United States citizenship.” 

also sought the

appointment of counsel in the District Court.

      On January 31, 2013, the District Court entered an order dismissing Kim‟s

complaint for failure to state a claim without leave to amend pursuant to 28 U.S.C. §

1915(e)(2)(B). In its memorandum, the District Court noted that, while Kim appeared to

be attempting to state a claim for employment discrimination under federal law, any

claim of employment discrimination is barred by Kim‟s untimeliness in asserting his

claim. Following the District Court‟s dismissal of his complaint, Kim timely appealed to

this Court and seeks appointment of counsel on appeal.

                                            II.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary

review over the District Court‟s dismissal of the complaint under section 1915(e)(2)(B).

See Allah v. Seiverling, 

, 223 (3d Cir. 2000). Pleadings and other
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submissions by pro se litigants are subject to liberal construction, and we are required to

accept the truth of Kim‟s well-pleaded allegations while drawing reasonable inferences in

his favor. See Higgs v. Att‟y Gen., 

, 339 (3d Cir. 2011); Capogrosso v. Sup.

Ct. of N.J., 

, 184 (3d Cir. 2009) (per curiam). However, a pro se complaint

must still “contain sufficient factual matter, accepted as true, to „state a claim to relief

that is plausible on its face.”‟ Ashcroft v. Iqbal, 

, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 

, 570 (2007)). Additionally, while affirmative

defenses must be affirmatively pleaded, the District Court did not err in raising the

untimeliness of the instant action sua sponte, as the defect was apparent from the face of

the complaint. See Ray v. Kertes, 

, 297 (3d Cir. 2002). We may summarily

affirm a judgment of the District Court on any basis supported by the record if the appeal

does not raise a substantial question. See I.O.P. 10.6; see also Murray v. Bledsoe, 

, 247 (3d Cir. 2011) (per curiam).

       The District Court correctly dismissed Kim‟s action against the IRS due to Kim‟s

failure to timely exhaust his claim. As Kim‟s claim arose in Pennsylvania, Kim was

required to file a complaint with the Equal Employment Opportunity Commission

“within 300 days of the allegedly unlawful employment practice.” See Mandel v. M & Q

Packaging Corp., 

, 165 (3d Cir. 2013) (citing 42 U.S.C. § 2000e–5(e)(1)).

Kim did not file a complaint with the EEOC and, if he had, he would also been required

to bring an employment discrimination claim in federal court within 90 days of receiving

a right-to-sue letter from the EEOC. See 42 U.S.C. § 2000e-16(c); McCray v. Corry
                                               3
Mfg. Co., 

, 227 (3d Cir. 1995). As Kim had not filed a charge of

discrimination with the EEOC within 300 days of the alleged unlawful employment

practice, but rather waited 24 years to assert his claim in the District Court, the instant

action is clearly untimely, which warranted the dismissal of his complaint. See, e.g.,

Francis v. Mineta, 

, 268, 272 (3d Cir. 2007); see also 42 U.S.C. § 2000e–

5(e)(1).1

       We have held that a district court should not dismiss a pro se complaint without

allowing the plaintiff leave to amend unless amendment would be inequitable or futile.

See Alston v. Parker, 

, 235 (3d Cir. 2004). As Kim delayed bringing this

action for 24 years, well outside the applicable time limitations, the District Court

appropriately determined that further amendment would be futile.

       Accordingly, this appeal presents us with no substantial question, and we will

summarily affirm the District Court‟s order. See 3rd Cir. LAR 27.4 and I.O.P. 10.6.

Kim‟s motions for appointment of counsel are denied. See Tabron v. Grace, 

,

155-56 (3d Cir. 1993).




1
  The District Court also correctly explained that the applicable statute of limitations was
not equitably tolled, as Kim acknowledged that he was aware of the facts underlying his
claim for more than 20 years, and actively sought an attorney at that time to prosecute his
claim, but ultimately did not bring any action before the EEOC or the federal courts until
the instant action. Complaint, ¶ V; Ruehl v. Viacom, Inc., 

, 383-84 (3d Cir.
2007).
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