MCCANN v. THE BOROUGH OF MAGNOLIA et al

Filing 2

OPINION. Signed by Chief Judge Jerome B. Simandle on 4/7/2014. (bdk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ROBERT MCCANN,

HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 14-170 (JBS/KMW)

v.
THE BOROUGH OF MAGNOLIA, et
al.,

OPINION

Defendants.

APPEARANCES:
Mr. Robert McCann
77 Vanderbilt Ct.
Sicklerville, NJ 08081
Plaintiff Pro Se
SIMANDLE, Chief Judge:
I.

INTRODUCTION
Plaintiff Robert McCann brought this action asserting

claims under 42 U.S.C. § 1983 against Defendants The Borough of
Magnolia, Mayor Betty-Ann Cowling-Carson, Chief of Police John
Evans, Officer Sherman, Municipal Court Judge Daniel Bernardin,
and Prosecutor Howard Long.1

This matter comes before the Court

on Plaintiff’s Application to Proceed without Prepaying Fees or
Costs. [Docket Item 1-1.] Because the application discloses that
Plaintiff is indigent, the Court will permit Plaintiff’s

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He sued Cowling-Carson, Evans, Sherman, Bernardin, and Long in
their personal and official capacities.

Complaint [Docket Item 1] to be filed without prepayment of
fees, pursuant to 28 U.S.C. § 1915(a).
Section 1915 also requires the Court to preliminarily
review complaints filed in forma pauperis. Plaintiff alleges
claims for violation of his equal protection and due process
rights because the police refused to file complaints and
investigate Plaintiff’s claims against his apartment manager.
Plaintiff also sues the prosecutor who declined to prosecute
Plaintiff’s criminal complaints and the judge who dismissed his
criminal complaints for lack of probable cause. Plaintiff’s
claims will be dismissed with prejudice because Plaintiff has
not alleged viable § 1983 claims and because the judge and
prosecutor are entitled to judicial immunity and prosecutorial
immunity, respectively.
II.

BACKGROUND
Plaintiff alleges that Coventry Place apartment manager Pat

O’Brien and two maintenance employees unlawfully entered his
apartment; evicted him without a court order; removed his
belongings; destroyed, damaged, or misplaced his money,
furniture, personal items, and clothes; changed his locks; and
filed a false report stating that Plaintiff had been evicted.
(Compl. at 1.)
Plaintiff called the Magnolia Police Department and
reported crimes of breaking and entering, theft, and damage to
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personal property. (Id. at 1.) Officer Sherman of the Magnolia
Police allegedly told Plaintiff that “he had been evicted . . .,
not to worry about [an eviction notice] and that he was
trespassing and that he would be arrested if he did not leave
the premises immediately . . . .” (Id. at 1.) Officer Sherman
allegedly denied Plaintiff’s request to file a complaint for
unlawful entry, theft, and property damage. (Id. at 1-2.)
Plaintiff met with Chief of Police John Evans who told Plaintiff
that “the incident was not criminal but rather an eviction and
plaintiff would not be allowed to file a complaint.” (Id. at 2.)
Plaintiff alleges that Evans threatened him with incarceration
if he returned to the apartment. (Id. at 2.)
Plaintiff then wrote Magnolia’s mayor and governing body
“explaining that he thought the Police Department violated his
right and had not afforded plaintiff equal protection under the
law . . . .” (Id. at 2.) He believed that the Police Department
condoned and did not investigate “an obvious crime.” (Id.)
After two weeks, Officer Sherman contacted Plaintiff and
said Plaintiff was not evicted and could reenter the unit.
“[U]pon entering plaintiff noticed numerous items missing and a
stench and foul odor coming from the furniture that had been
replaced . . . .” (Id.) The missing items included family
pictures, clothes, coin collections, money that had been hidden
in the sofa, and memorabilia. (Id.)
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Plaintiff filed a complaint about the missing items and, at
the court date in January 2013, Municipal Court Judge Daniel
Bernardin “found without calling the defendants to testify, or
the Police department to testify, [n]or did the court allow the
plaintiff to ask questions . . . . but that this matter was a
civil matter and there was no probable cause to sustain the
charges against the defendants.” (Id.) The municipal prosecutor
did not handle Plaintiff’s complaint. (Id.) Judge Bernardin
“instructed defendant to file suit in the Superior Court of NJ,
Landlord Tenant Part.” (Id.)
Plaintiff alleges that, the next day, he was served with a
summons to appear in Landlord Tenant Court for eviction
proceedings, even though Plaintiff had not defaulted on his rent
payments. (Id.) Plaintiff alleges that he had complained to
management “after finding mold in his apartment and being
sickened enough to have to go to the hospital on numerous
occasions,” and that management was retaliating against him for
complaining about the mold. (Id.)
Plaintiff asserts that the Defendants “conspired with
Coventry Place Apartments to Violate the Equal Protection Clause
of the constitution and abridge the rights of the plaintiff and
deny him due process.” (Id.) He further alleges that Defendants
“did not properly investigate, prosecute, arraign, or preside
over the hearing in accordance with state law.” (Id. at 3.)
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Plaintiff argues that “[t]he Police Department, Officer, Chief
of Police, Prosecutor, Mayor and Judge had the final policy
making authority to bind the Boro.” (Id.) Plaintiff alleges that
Defendants denied him equal protection by denying him the
opportunity to file a complaint, “covneing [sic] an ad hoc court
for the sole purpose of allowing the defendant to comimt [sic] a
crime agaisnt [sic] another person who is black and file false
police reports . . . .” (Id.) Plaintiff also claims that
Defendants “conspired to cover up this crime . . . and delay the
court process . . . .” (Id.)
Plaintiff seeks damages of $5,031,000.00. (Id.)
III. STANDARD OF REVIEW
Section 1915 requires the Court to preliminarily review
each action filed in forma pauperis and to “dismiss the case at
any time if the court determines that . . . the action . . . (i)
is frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against a
defendant who is immune from such relief.” 28 U.S.C. §
1915(e)(2)(B). A complaint “is frivolous where it lacks an
arguable basis either in law or in fact.” Neitzke v. Williams,
490 U.S. 319, 325 (1989) (interpreting 1915(e)(2)’s predecessor,
the former § 1915(d)).
Although a court must accept as true all factual
allegations in a complaint, that tenet is “inapplicable to legal
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conclusions” and “[a] pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause
of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quotation omitted). In addition, if a complaint is
vulnerable to dismissal, “a district court must permit a
curative amendment, unless an amendment would be inequitable or
futile.” Phillips v. County of Allegheny, 515 F.3d 224, 236 (3d
Cir. 2008).
IV.

DISCUSSION
A. Plaintiff’s § 1983 Claims Fail
To state a § 1983 claim, “a plaintiff must allege the

violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v.
Atkins, 487 U.S. 42, 48 (1988); Malleus v. George, 641 F.3d 560,
563 (3d Cir. 2011). “Section 1983 is not a source of substantive
rights and does not provide redress for common law torts—the
plaintiff must allege a violation of a federal right.” Berg v.
Cnty. of Allegheny, 219 F.3d 261, 268 (3d Cir. 2000). Plaintiff
has not alleged a violation of a federal right.
Plaintiff’s claims against the police for refusing to allow
him to file a complaint fail because “a private citizen lacks a
judicially cognizable interest in the prosecution or
nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S.
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614, 619 (1973). As a result, Plaintiff “had no constitutionally
protected right to file a criminal complaint.” Green v. Sneath,
Civ. 09- 0154, 2012 WL 1020253, at *7 (M.D. Pa. Mar. 26, 2012),
aff'd, 508 F. App'x 106 (3d Cir. 2013). See also Hookey v.
Lomas, 438 F. App'x 110, 113 (3d Cir. 2011) (“Trooper Townsend’s
alleged refusal to file a criminal complaint against Jones does
not give rise to a viable § 1983 claim”); Diaz v. Cumberland
Cnty. Jail, Civ. 10-3932 (JBS), 2010 WL 3825704, at *6 (D.N.J.
Sept. 23, 2010) (“Since Plaintiff, a private citizen, is without
authority to file criminal charges, his allegations that he was
unduly denied an opportunity to file a criminal complaint
against O'Cruz is facially without merit and will be dismissed
with prejudice”) (citation omitted); Caracter v. Avshalumov,
Civ. 06-4310 (SRC), 2006 WL 3231465, at *4 (D.N.J. Nov. 8, 2006)
(“Officer Hangan did not violate Plaintiff’s civil rights when
Officer Hangan refused Plaintiff’s request to file a criminal
complaint”).
In addition, claims against police officers for failing to
investigate complaints are not cognizable. See, e.g., Fuchs v.
Mercer Cnty., 260 F. App'x 472, 475 (3d Cir. 2008) (plaintiff’s
“claim regarding defendants’ allegedly deficient performance in
investigating his private criminal complaint” fails because
“[t]here is no statutory or common law right, much less a
constitutional right, to [such] an investigation”); Guarrasi v.
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Gibbons, Civ. 07-5475, 2008 WL 4601903, at *9 (E.D. Pa. Oct. 15,
2008) (plaintiff’s claim “that the police failed to execute his
private criminal complaint” was “frivolous”).
The Court will dismiss Plaintiff’s claims against Officer
Sherman and the Chief of Police with prejudice because their
alleged actions do not give rise to a viable § 1983 claim.
Plaintiff’s claims against the Mayor and the Borough of Magnolia
will also be dismissed with prejudice because they cannot be
liable for having decision-making authority over the police when
Plaintiff has not alleged a viable, underlying § 1983 claim.
B. Absolute Immunity
Plaintiff’s claims against Judge Bernardin and prosecutor
Long will also be dismissed with prejudice because judges and
prosecutors are entitled to absolute immunity for their actions
in furtherance of their judicial and prosecutorial duties,
respectively.
“[G]enerally, a judge is immune from a suit for money
damages.” Mireles v. Waco, 502 U.S. 9, 9 (1991). “[J]udicial
immunity is an immunity from suit, not just from ultimate
assessment of damages.” Id. at 11. “[J]udicial immunity is not
overcome by allegations of bad faith or malice.” Id. “[T]he
immunity is overcome in only two sets of circumstances. First, a
judge is not immune from liability for nonjudicial actions,
i.e., actions not taken in the judge’s judicial capacity.
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Second, a judge is not immune for actions, though judicial in
nature, taken in the complete absence of all jurisdiction.” Id.
at 11-12 (citations omitted). In determining whether judicial
immunity applies, “the relevant inquiry is the ‘nature’ and
‘function’ of the act . . . .” Id. at 13 (citation omitted).
Plaintiff alleges that Judge Bernardin unlawfully found
“that this matter was a civil matter and there was no probable
cause to sustain the charges” and unlawfully suggested that this
matter should be addressed in landlord-tenant court. (Compl. at
2.) Judge Bernardin made these assessments while acting in his
capacity as a municipal court judge and there are no allegations
that he wholly lacked jurisdiction. Therefore, he is entitled to
immunity from suit and will be dismissed with prejudice.
Defendant Long, the prosecutor, is also entitled to
immunity because “a prosecutor enjoys absolute immunity from s
1983 suits for damages when he acts within the scope of his
prosecutorial duties.” Imbler v. Pachtman, 424 U.S. 409, 420
(1976). “The decision to initiate a prosecution is at the core
of a prosecutor's judicial role. A prosecutor is absolutely
immune when making this decision . . . .” Kulwicki v. Dawson,
969 F.2d 1454, 1463-64 (3d Cir. 1992) (citations omitted); see
also Radocesky v. Munley, 247 F. App'x 363, 365 (3d Cir. 2007)
(“[t]he decision whether or not to initiate or prosecute a case
is completely discretionary with prosecutors and also is
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absolutely immunized from a suit for damages”). “[B]ecause no
additional allegations could exclude plaintiff from the Supreme
Court’s general rule that private citizens lack standing to
challenge the prosecution or nonprosecution of others, amendment
of the complaint would be futile.” Kornafel v. Donohue, Civ. 0906, 2009 WL 174116, at *2 (E.D. Pa. Jan. 22, 2009). Therefore,
Plaintiff’s claims against Long will also be dismissed with
prejudice.
V.

CONCLUSION
Plaintiff’s claims against Chief of Police John Evans,

Officer Sherman, Mayor Betty Ann Cowling-Carson, and the Borough
of Magnolia will be dismissed with prejudice because Plaintiff
has not alleged viable § 1983 claims.2 His claims against Judge
Daniel Bernardin and Prosecutor Howard Long will also be
dismissed with prejudice because they are entitled to absolute
immunity. All Defendants are therefore dismissed with prejudice,
and the case will be closed on the docket. An accompanying Order
will be entered.

April 7, 2014
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

2

Nothing herein determines the merits of Plaintiff’s position
that his landlord wrongfully evicted him, destroyed property, or
stole money and valuables, which are matters for landlord-tenant
litigation or other private action in the Superior Court of New
Jersey. In any event, no such claims were asserted here and the
landlord is not named as a defendant.
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