Brian D’alfonso v. EUGENE CARPINO, Paid Federal Informant

DLD-033 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-3461
BRIAN D’ALFONSO,
Appellant
v.
EUGENE CARPINO, Paid Federal Informant;
GABRIEL SANTOSUSSO, Paid Federal Informant;
CARMEN DECLERICO, Securities Investigation PA Sec. Commission
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 07-cv-04816)
District Judge: Honorable Michael M. Baylson
____________________________________
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
November 5, 2009
Before: FUENTES, JORDAN and HARDIMAN, Circuit Judges
(Opinion filed: November 17, 2009)
OPINION
PER CURIAM

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Appellant Brian D’Alfonso was indicted in United States District Court for the
Eastern District of Pennsylvania on 16 counts of mail fraud in violation of 18 U.S.C. §
1341, and 4 counts of the sale of unregistered securities in violation of 15 U.S.C. §
77e(a)(2). The indictment charged that from June of 1998 through April of 2000,
D’Alfonso operated a scheme to defraud investors and to obtain money and property
under false pretenses. On May 4, 2004, D’Alfonso pleaded guilty to the 16 counts of mail
fraud. On February 1, 2005, he was sentenced to a term of imprisonment of 60 months on
Count 1, and to 15 months of imprisonment on each of Counts 2 through 16, to run
concurrently with each other and consecutive to Count 1. As part of his plea agreement,
D’Alfonso agreed to waive his right to appeal and collaterally challenge his conviction
and sentence. D’Alfonso appealed, but we granted the government’s motion to enforce
the appellate waiver and dismissed the appeal (C.A. No. 05-1363).
On September 5, 2007, D’Alfonso filed a civil rights action under 42 U.S.C. §
1983 against Carmen DeClerico, an investigator for the Pennsylvania Securities
Commission, and two individuals alleged to have acted as informants in his case, Eugene
Carpino and Gabriel Santosusso. D’Alfonso alleged that these defendants violated his
Fourth Amendment right to be free from warrantless searches and his Fifth Amendment
right to due process, and he alleged that DeClerico violated his Fourteenth Amendment
right to equal protection by selectively prosecuting him. He asserted in the complaint that
he hired Carpino and Santosusso in the Spring of 2000 to work at his jewelry store, which

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was owned by his corporation, Tech-Vest. Carpino and Santosusso removed records
containing information on Tech-vest’s investors, financial transactions, and stock
transfers from the corporate offices, without a warrant or consent, pursuant to a
conspiracy that involved DeClerico. Also in furtherance of the conspiracy, Carpino and
Santosusso installed audio listening devices at the jewelry store and removed jewelry and
money from the store, without a warrant or consent. Carpino and Santosusso went on to
testify, on January 30, 2003, before a federal grand jury that was considering a pending
indictment against D’Alfonso, and they provided incriminating evidence, which
D’Alfonso alleges was untruthful. D’Alfonso later amended his complaint to include
Elizabeth Ainslee, Esquire, as a defendant.
Just prior to initiating the civil rights action, on August 14, 2007, D’Alfonso filed a
motion to vacate sentence under 28 U.S.C. § 2255 in the United States District Court for
the Eastern District of Pennsylvania, alleging ineffective assistance of trial counsel,
Benjamin Cooper, Esquire, and prosecutorial misconduct. He claimed, in part, that the
prosecutors knowingly permitted perjury before the grand jury and failed to disclose that
Carpino and Santosusso were convicted drug dealers and that one was a suspect in an
unsolved homicide. The government moved to dismiss the section 2255 motion on the
basis of the collateral appeal waiver executed by D’Alfonso in connection with his plea
agreement. On April 3, 2008, the sentencing court held an evidentiary hearing on the
claim that the plea agreement waiver was unknowing and involuntary.

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While the section 2255 motion proceedings were pending, DeClerico moved to
dismiss D’Alfonso’s civil rights complaint on the following grounds: the claims were
barred by the two-year statute of limitations applicable to claims under 42 U.S.C. § 1983,
the Fourth and Fifth Amendment claims were barred by Heck v. Humphrey, 512 U.S. 477
(1994), the Equal Protection claim could not survive Fed. R. Civ. Pro. 12(b)(6), and
damages against DeClerico in his official capacity were barred by the Eleventh
Amendment. Carpino also filed a motion to dismiss, raising Heck’s favorable termination
rule and the statute of limitations defense. Santosusso did not respond to the complaint.
D’Alfonso submitted opposition to the dismissal motions and sought a default against
Santosusso.
In an order entered on April 17, 2008, the sentencing court dismissed D’Alfonso’s
section 2255 motion, concluding that his waiver with respect to section 2255 proceedings
was enforceable because it was knowing and voluntary. The sentencing court credited the
testimony of attorney Cooper that he explained the terms of the plea agreement to
D’Alfonso, including the waiver provision. The court did not credit D’Alfonso’s
testimony to the contrary. D’Alfonso appealed. On September 17, 2008, we declined to
issue a certificate of appealability, concluding that “jurists of reason would not debate the
[sentencing court’s] conclusions that [D’Alfonso] knowingly and voluntarily waived his
right to appeal and collaterally challenge his sentence ... and that enforcing the waiver
does not result in a miscarriage of justice. Slack v. McDaniel, 529 U.S. 473, 484 (2000);

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United States v. Khattak, 273 F.3d 557, 562-63 (3d Cir. 2001).”
Meanwhile, in an order entered on June 2, 2008, the District Court, in the civil
rights action, ordered the entry of a default with respect to Santosusso, a state prisoner,
see Fed. R. Civ. Pro. 55(a), but the court deferred entry of a judgment against him
pending discovery. In an order entered on July 31, 2008, the District Court granted
DeClerico’s and Carpino’s motions to dismiss, reasoning that the deprivation of
D’Alfonso’s property without a warrant took place before the indictment. Thus, the
statute of limitations for the action expired no later than May 4, 2006, two years after he
pleaded guilty and well before his civil rights action was filed. See Wilson v. Garcia, 471
U.S. 261, 276 (1985) (state statute of limitations for torts applies to civil rights action);
Bougher v. University of Pittsburgh, 882 F.2d 74, 78 (3d Cir. 1989) (tort action in
Pennsylvania has two-year statute of limitations.) Insofar as it appeared that defendant
Ainslee had not been served, the District Court gave notice of its intent to dismiss the
amended complaint as to her for failure to prosecute. D’Alfonso was directed to respond
to the remaining issues in the case.
Just over a year later, in an order entered on August 10, 2009, the District Court
dismissed the case as to the remaining defendants, Ms. Ainslee and Santosusso. The
District Court was dissatisfied with D’Alfonso’s response concerning the remaining
issues and concluded that the action against these defendants could not be maintained, see
Fed. R. Civ. Pro. 12(b)(6). In addition, the court reasoned that its time-bar analysis also

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applied to the remaining defendants, and, with respect to the default entered against
Santosusso, D’Alfonso had not taken steps to obtain a judgment, see Fed. R. Civ. Pro.
55(b).
D’Alfonso appeals. Our Clerk granted him leave to appeal in forma pauperis and
advised him that his appeal was subject to summary dismissal under 28 U.S.C. §
1915(e)(2)(B), or summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. He
was invited to submit argument in writing; he has not done so.
We will dismiss the appeal as frivolous. We have jurisdiction under 28 U.S.C. §
1291. An appellant may prosecute his appeal without prepayment of the fees, 28 U.S.C. §
1915(a)(1), but the in forma pauperis statute provides that the Court shall dismiss the
appeal at any time if the Court determines that it is frivolous, 28 U.S.C. §
1915(e)(2)(B)(i). An appeal is frivolous when it lacks an arguable basis either in law or
fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). This appeal lacks an arguable basis
in law, because, if D’Alfonso’s claims have already accrued, then his action is time-
barred, just as the District Court concluded. If his claims have not yet accrued, because
they implicate the validity of his conviction, the action is barred by Heck’s favorable
termination rule. Cf. Bernitsky v. United States, 620 F.2d 948, 950 (3d Cir. 1980) (court
is free to affirm judgment on any basis which finds support in the record).
In Heck, the Supreme Court held that “harm caused by actions whose unlawfulness
would render a conviction or sentence invalid” is not cognizable under 42 U.S.C. § 1983,

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unless the conviction or sentence was “reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court's issuance of a writ of habeas corpus.” 512 U.S. at
486-87. See also Edwards v. Balisok, 520 U.S. 641, 645-47 (1997). The purpose of the
requirement “is to avoid parallel litigation of probable cause and guilt,” and to prevent
“the claimant from succeeding in a tort action after having been convicted in the
underlying criminal prosecution, which would run counter to the judicial policy against
creating two conflicting resolutions arising from the same transaction.” Gilles v. Davis,
427 F.3d 197, 209 (3d Cir. 2005).
In Gibson v. Superintendent, N.J. Dep’t of Law and Public Safety, 411 F.3d 427
(3d Cir. 2005), we addressed whether Heck applied to Fourth Amendment claims, and we
approved of a fact-based inquiry into whether the particular claim implied the invalidity
of the underlying conviction. Id. at 450 (“Heck does not set forth a categorical rule that
all Fourth Amendment claims accrue at the time of the violation.”). Moreover, in Gibson,
we held that an individual’s Equal Protection claim that law enforcement personnel
engaged in racially selective law enforcement practices did not begin to run until his
conviction had been vacated. Id. at 440-41.
D’Alfonso’s Fourth Amendment and due process claims pertain to the deprivation
of his property, specifically Tech-Vest’s records, jewelry and money. His Equal
Protection claim pertains to a selective prosecution. It thus may be, as the moving

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With respect to the Fourth Amendment and due process claims, D’Alfonso appeared1
to allege that the defendants deprived him of material, exculpatory evidence. See Brady
v. Maryland, 373 U.S. 83 (1963).
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defendants noted, that D’Alfonso’s claims concerning the warrantless removal of his
property, and the selective enforcement against him of state securities laws, would, if
successful, have the effect of rendering his criminal convictions invalid. Id. at 451.1
Since his conviction and sentence have never been reversed, expunged or declared invalid
by any court, any claim that would imply the invalidity of his underlying conviction has
not accrued and will not accrue until his conviction has been overturned. See
Montgomery v. DeSimone, 159 F.3d 120, 126 (3d Cir. 1998) (although state law sets the
applicable limitations period, federal law dictates when the action accrues).
In this scenario, D’Alfonso’s civil rights action is barred as premature, rather than
barred as having been filed too late, and the dismissal of his amended complaint is on the
basis that the claims are not cognizable. Heck, 512 U.S. at 486-87. However, because of
doctrines like independent source, inevitable discovery, and harmless error, not all Fourth
Amendment claims, if successful, would imply the invalidity of a conviction. Id. at 487
n.7. To the extent that D’Alfonso’s claims accrued prior to his guilty plea, the District
Court properly applied the governing law in concluding that his federal constitutional
causes of action were barred by the two-year statute of limitation applicable to torts. See
42 Pa. Cons. Stat. Ann. § 5524 (West 2004). An action brought under 42 U.S.C. § 1983
is subject to the state statute of limitations governing personal injury actions. Wilson, 471

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U.S. at 276-278.
For the foregoing reasons, we will dismiss the appeal as frivolous pursuant to 28
U.S.C. § 1915(e)(2)(B)(i).

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