Mustafa Ali v. Andrew Amoroso

GLD-098 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-3210
___________
MUSTAFA ALI,
Appellant
v.
ANDREW AMOROSO; PATRICK MCGINTY;
CHARLES BOYLE; SCOTT CARITA; SUSAN REARDON
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 11-cv-06113)
District Judge: Honorable Legrome D. Davis
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
January 17, 2013
Before: FUENTES, FISHER and ROTH, Circuit Judges
(Opinion filed: March 7, 2013)
_________
OPINION
_________
PER CURIAM
Pro se Appellant Mustafa Ali appeals from the July 23, 2012 order of the United
States District Court for the Eastern District of Pennsylvania. We will affirm.
Because the parties are familiar with the background, we present only a summary
here. In May 2007, Ali bought an Acura vehicle from the Davis Acura dealership. Ali
made a car payment using a personal check, but the check did not clear. In July 2007,
Scott Carita, then Davis Acura’s finance manager, contacted Ali concerning the situation.
Working with another Davis Acura employee, Ali arranged for his checking account to
be debited to cover the amounts due. Meanwhile, Carita reported the bad check to the
Middletown Township Police Department.
On October 4, 2007, in Philadelphia, an individual killed two people during the
robbery of an armored car. A former Davis Acura employee later contacted the
Philadelphia Police Department, stating that Davis Acura might have sold the vehicle
depicted in a crime scene photo to a person who looked like the robbery suspect. The
former employee provided information about the customer, noting that the customer’s
credit check had revealed a “terrorist alert” on his name. Philadelphia police then
contacted Lieutenant Patrick McGinty of the Middletown Township Police Department.
McGinty then conveyed the matter to Detective Andrew Amoroso, also of the
Middletown Township Police Department. Upon learning that the robbery suspect was
also accused of using a bad check when buying the car, Amoroso contacted Carita, who
confirmed details of Ali’s transaction at Davis Acura. Amoroso prepared an affidavit of
probable cause stating that Ali had issued a bad check and that all attempts at contact to
recoup the loss had failed. Amoroso obtained an arrest warrant for charges related to the
bad check and transmitted it to the Philadelphia Police Department, who arrested Ali,
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took him to police headquarters, and questioned him about and charged him with the
Philadelphia crimes.
Later, while in custody in Bucks County, Ali was charged with theft by deception,
receiving stolen property, and passing a bad check. Upon his appointed public defender’s
advice, he pleaded guilty to unintentionally passing a bad check. According to Ali, he
did not receive any discovery materials from his attorney until May 2008, after pleading
guilty, and he became aware that the arrest warrant was issued by Middletown Township
police, not Philadelphia police. With that information, Ali immediately began pursuing
relief in his Bucks County case to withdraw his guilty plea, ultimately succeeding in
March 2011. Eventually, all of the charges relating to the bad check were dropped.
Meanwhile, in February 2010, Ali was tried and convicted in Philadelphia for robbery
and two counts of first-degree murder.
In September 2011, Ali filed his complaint against individually named detectives
of the Middletown Township Police Department, detectives and officers of the
Philadelphia Police Department, Davis Acura, Scott Carita, the tipster Susan Reardon,
and two Bucks County public defenders. The Philadelphia Police defendants, Davis
Acura, and the two Bucks County public defenders filed motions to dismiss. On
February 21, 2012, in three separate orders, the District Court dismissed those defendants
without prejudice, with allowance for Ali to file an amended complaint.
Ali filed an amended complaint in April 2012 against McGinty and Amoroso of
the Middletown Township Police Department; seven detectives and one sergeant of the
Philadelphia Police Department; Detective Charles Boyle, formerly of the Philadelphia
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Police Department; Scott Carita, and Susan Reardon. Ali asserted state law claims of
malicious prosecution and federal claims under 42 U.S.C. § 1985 of a conspiracy to
deprive him of his civil rights.1 All of the defendants except for Carita and Reardon (who
were never served) filed new motions to dismiss; Defendant Boyle incorporated and
relied on the arguments made by the Philadelphia Police defendants. Ali filed responses
to the motions filed by the Philadelphia Police defendants and Amoroso and McGinty,
but he did not file a response to Defendant Boyle’s motion. On June 12, 2012, the
District Court granted the motion to dismiss the claims against the Philadelphia Police
defendants. By order entered July 23, 2012, the District Court dismissed Defendants
Carita and Reardon for failure to serve, and in the alternative, dismissed the federal
claims against them as time-barred and declined to exercise jurisdiction over the state law
claims. Further, the District Court granted Defendant Boyle’s motion to dismiss as
unopposed, and in the alternative, dismissed the claims as time-barred. As for
Defendants Amoroso and McGinty, the District Court granted their motion to dismiss as
to the federal claims, concluding that the section 1985 claim was time-barred, and
declined to exercise jurisdiction over the state law claims. This appeal followed.2
1
Ali also asserted derivative claims on behalf of his minor children, which, as the District
Court noted, Ali consented to dismiss.
2
In compliance with Rule 3(c)(1)(B) of the Federal Rules of Appellate Procedure, Ali’s
notice of appeal designates the District Court’s July 23, 2012 order as the subject of the
appeal, specifically noting the granting of the motion to dismiss filed by Defendants
Amoroso and McGinty. Ali has not manifested any intent to appeal from the District
Court’s prior orders. Even if we were to construe Ali’s notice of appeal as appealing
from the District Court’s June 12, 2012 order, see Shea v. Smith, 966 F.2d 127, 129 (3d
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We have jurisdiction under 28 U.S.C. § 1291, and our review of an order granting
a motion to dismiss is plenary. Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d
Cir. 2008). We will summarily affirm the order of the District Court because no
substantial question is presented by this appeal. See Third Circuit LAR 27.4 and I.O.P.
10.6. The District Court’s July 23, 2012 order provides a comprehensive analysis, which
we will supplement only as follows.
The two-year statute of limitations for personal injury claims under Pennsylvania
state law also applies to Ali’s section 1985 conspiracy claim. See Bougher v. Univ. of
Pittsburgh, 882 F.2d 74, 79 (3d Cir. 1989). As the District Court explained, his claim
would have accrued when Ali knew or should have known of the alleged conspiracy
between the Middletown Township and Philadelphia police defendants. See Dique v.
N.J. State Police, 603 F.3d 181, 189 (3d Cir. 2010). Ali was arrested by Philadelphia
police officers in 2007. According to his amended complaint, he became aware that the
arrest warrant was issued from Middletown Township just after his May 2008 Bucks
County guilty plea. Applying the two-year statute of limitations, Ali should have filed
his complaint by May 2010, but he did not do so until September 2011.
In his notice of appeal, Ali notes his objection to the District Court’s refusal to
apply equitable tolling to the statute of limitations. State law generally governs tolling
principles. See Dique, 603 F.3d at 185. In Pennsylvania, the statute of limitations may
be tolled by the discovery rule or the fraudulent concealment doctrine. See Mest v. Cabot
Cir. 1992), we would affirm the District Court’s dismissal of the other defendants for
substantially the same reasons given by the District Court.
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Corp., 449 F.3d 502, 510, 516 (3d Cir. 2006). The discovery rule tolls the statute of
limitations when an injury or its cause was not known or reasonably knowable “despite
the exercise of due diligence.” Id. at 510 (quoting Pocono Int’l Raceway v. Pocono
Produce, Inc., 468 A.2d 468, 471 (Pa. 1983). The fraudulent concealment doctrine tolls
the statute of limitations when “through fraud or concealment the defendant causes the
plaintiff to relax vigilance or deviate from the right of inquiry.” Mest, 449 F.3d at 516(quoting Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d 548, 556 (3d Cir. 1985)).
In opposing the motion to dismiss, Ali contended that the details of the two police
departments working together were not revealed to him until January 2010, including
names of the police officers and other information. Ali argued that he did not fail to
exercise diligence, in light of his prompt attempts to withdraw his Bucks County guilty
plea after becoming aware of the nature of the arrest warrant in May 2008. Ali also noted
that his initial attempts to present his motions pro se were thwarted because he was still
officially represented by counsel in his Bucks County case, and counsel was slow to
engage in the matter. As the District Court pointed out, Ali certainly was aware in May
2008 that he had suffered some injury stemming from the circumstances of having been
arrested by Philadelphia police for the Philadelphia crimes on the arrest warrant issued by
the Middletown Township police. Indeed, by his own account, Ali immediately began
pursuing relief from his Bucks County guilty plea based on that information, and with
that diligence, he could have begun pursuing civil relief as well. The discovery rule does
not apply here. To the extent that Ali argued that the fraudulent concealment doctrine
should apply in light of the state court’s failure to recognize his pro se filings while he
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was represented by counsel, the argument is unavailing. Ali did not allege any acts of
fraud or concealment by the defendants. See Mest, 449 F.3d at 516. We agree with the
District Court’s conclusion that Ali has not shown that the application of equitable tolling
is justified here.
Lastly, Ali contends in his notice of appeal that the District Court erred by failing
to convert the motion to dismiss into a motion for summary judgment. We discern no
error here. See In re Rockefeller Center Properties, Inc. Securities Litig., 184 F.3d 280,
287 (3d Cir. 1999) (in ruling on a motion to dismiss, the District Court may consider
certain material, including items integral to or explicitly relied upon in the complaint);
Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993) (court may consider undisputedly authentic documents attached as exhibits to a
motion to dismiss if the plaintiff’s claims are based on the documents). We add that the
District Court properly dismissed the state law claims pursuant to 28 U.S.C. § 1367(c)(3).
Accordingly, we will affirm the District Court’s judgment.
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