DLD-301                                                           NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________

                                         No. 16-1246
                                         ___________

                                   CHANDLER P. SMITH,

                                                         Appellant
                                               v.

                    BOROUGH OF MORRISVILLE, PENNSYLVANIA
                      _______________________________________

                       On Appeal from the United States District Court
                           for the Eastern District of Pennsylvania
                                 (D.C. Civ. No. 15-cv-06541)
                       District Judge: Honorable Mitchell S. Goldberg
                       _______________________________________

                     Submitted for Possible Summary Action Pursuant to
                         Third Circuit L.A.R. 27.4 and I.O.P. 10.6

                                 June 23, 2016
           Before: CHAGARES, GREENAWAY, JR., and GARTH, Circuit Judges

                                 (Opinion filed: July 20, 2016)

                                         ___________

                                          OPINION *
                                         ___________


PER CURIAM


*
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
       Appellant Chandler Smith, proceeding pro se, appeals from the District Court’s

order dismissing his complaint. For essentially the reasons set forth by the District Court,

we will summarily affirm.

       On December 10, 2015, Smith submitted a complaint and an application to

proceed in forma pauperis to the United States District Court for the Eastern District of

Pennsylvania. The District Court granted Smith’s application to proceed in forma

pauperis and screened the complaint pursuant to 28 U.S.C. § 1915(e)(2). The District

Court discerned that the allegations in the complaint asserted that Smith was prosecuted

for disorderly conduct in retaliation for filing a criminal complaint against a Morrisville

police officer. Smith was apparently trying to effectuate a “citizen’s arrest” against the

officer. The District Court also understood that Smith, who identified himself as

disabled, purported to be asserting claims under 18 U.S.C. §§ 241 and 242, as well as the

Americans with Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”). Smith

sought, inter alia, to have his disorderly conduct conviction expunged and to receive

“repayment” of his legal fees, fines, and court costs.

       The District Court concluded that Smith failed to state a claim under §§ 241 and

242, because those are criminal statutes that do not give rise to civil liability. See D. Ct.

Order entered 12/22/15 at 2 (citing Cent. Bank of Denver, N.A. v. First Interstate Bank of

Denver, N.A., 511 U.S. 164, 190 (1994)). To the extent Smith might have intended to

assert a claim under 42 U.S.C. § 1983, the District Court concluded that he failed to do so


constitute binding precedent.                 2
because the Borough of Morrisville is not liable under § 1983 absent a municipal policy

or custom that caused the constitutional violation. Smith suggested no such policy or

custom. Id. (citing Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 694 (1978)).

The court determined that Smith likewise failed to state a plausible claim for retaliatory

prosecution, because his claim was supported only by conclusory allegations and no

factual basis establishing the absence of probable cause for his disorderly conduct

prosecution. Id. (citing Hartman v. Moore, 547 U.S. 250, 252 (2006)). Any intended

claim of malicious prosecution fared no better, given Smith’s failure to adequately plead

such a claim. Id. at n.2 (citing Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009) (en

banc)).

         The District Court concluded its analysis of Smith’s civil rights claims by noting

that his claims are not cognizable in any event, “because a plaintiff may not recover

damages or other relief based on an alleged unconstitutional conviction unless that

conviction ‘has been 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.’” Id. (quoting Heck v.

Humphrey, 512 U.S. 477, 487 (1994)). At the time Smith submitted his complaint, his

appeal of the disorderly conduct conviction was pending in the Pennsylvania Superior

Court. Id. at 1 (citing Commonwealth v. Smith, Docket No. 2726 EDA 2015 (Pa. Super.

Ct.)).


                                               3
       Finally, although Smith referenced the ADA and RA, and noted that he has a

disability (he walks with a prosthetic left leg), the District Court concluded that his

complaint does not clearly allege how he was discriminated against on the basis of that

disability. Thus, the court determined that he failed to state a claim under those statutes.

Id. at 3. Accordingly, the District Court dismissed the complaint without prejudice

pursuant to § 1915(e)(2)(B)(ii), and provided Smith thirty days to file an amended

complaint.

       Smith timely filed an amended complaint. In screening the amended complaint,

however, the District Court concluded that it does not rectify the noted deficiencies and

state a plausible basis for those claims; instead, it “details an entirely different set of facts

and asks for a completely different form of relief than was set out in his complaint.” See

D. Ct. Order entered 1/20/16 at 1 n,1. In particular, Smith’s new complaint asserted that

the elevator at the Morrisville Public Library was not functioning on certain days during

the period from 2012 to 2014, and that he was harassed by Morrisville employees for

having complained about disability access at the library. Smith requested both damages

and an injunction “to ensure the Morrisville Public Library lift serves its intended

purpose of providing disability access.” See Am. Compl. at 5. The District Court

dismissed Smith’s amended complaint without prejudice to his right to refile it as a new

civil action.




                                                4
       Smith appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291, 1 and exercise

plenary review over the District Court’s dismissal of Smith’s complaint for failure to

state a claim under § 1915(e). See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).

We conclude that the District Court properly dismissed Smith’s complaint. Even

construing his initial pro se submission liberally, Erickson v. Pardus, 551 U.S. 89, 94

(2007), we determine that Smith fails to state any claim for relief for the reasons

thoroughly discussed by the District Court.

       Additionally, given the record in this case, we cannot conclude that the District

Court erred in determining that the allegations in the proposed amended complaint did

not arise from or relate to the same events set out in Smith’s original complaint, but

instead detailed an entirely different set of facts and requested a different form of relief.

Under these circumstances, we find no abuse of discretion on the part of the District

Court in determining that allowing Smith leave to amend his complaint a second time

would have been futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d

Cir. 2002) (explaining that leave to amend need not be granted if amendment would be



1
  “Generally, an order which dismisses a complaint without prejudice is neither final nor
appealable because the deficiency may be corrected by the plaintiff without affecting the
cause of action.” Borelli v. City of Reading, 532 F.2d 950, 951 (3d Cir. 1976) (per
curiam). “Only if the plaintiff cannot amend or declares his intention to stand on his
complaint does the order become final and appealable.” Id. at 951-52. In this case,
Smith has already filed an amended complaint within the time afforded by the District
Court and, as will be discussed, he cannot cure the deficiency in the proposed amended
complaint by further amendment. Thus, the District Court’s order is final within the
meaning of § 1291.
                                             5
futile). The District Court acted appropriately in requiring Smith to pursue those claims

in a separate civil action.

       Accordingly, because the appeal presents no substantial question, we will

summarily affirm the District Court’s order of dismissal. See Third Circuit LAR 27.4

and I.O.P. 10.6.




                                            6
