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GLD-098 NOT PRECEDENTIAL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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