DLD-026                                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 13-3307
                                     ___________

                          EUGENE DOUGLAS MANNING,
                                         Appellant

                                          v.

          ZACHARY I. MILLS, ASSISTANT DISTRICT ATTORNEY;
    MATTHEW DREW FOGAL, DISTRICT ATTORNEY; FRANKLIN COUNTY
     PENNSYLVANIA; CITY OF CHAMBERSBURG; COMMONWEALTH OF
                          PENNSYLVANIA
               ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                            (D.C. Civil No. 1:13-cv-01069)
                     District Judge: Honorable John E. Jones, III
                     ____________________________________

                       Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  October 31, 2013
        Before: SMITH, HARDIMAN and VAN ANTWERPEN, Circuit Judges

                          (Opinion filed: November 5, 2013)
                                      _________

                                      OPINION
                                      _________

PER CURIAM

      Pro se appellant Eugene Manning appeals from the District Court’s sua sponte

dismissal of his amended complaint. There being no substantial question presented, we


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will grant the Appellees’ motion for summary action and will summarily affirm the

District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

       In April 2013, Manning, then incarcerated at the Franklin County Jail in

Chambersburg, Pennsylvania, filed a complaint pursuant to 42 U.S.C. § 1983, alleging

that Assistant District Attorney (“ADA”) Mills and District Attorney (“DA”) Fogal

violated his rights in connection with his prosecution on multiple stalking and harassment

charges. Manning also named the Borough of Chambersburg, Franklin County, and the

Commonwealth of Pennsylvania as defendants. The Magistrate Judge recommended that

his complaint be dismissed for failure to state a claim. The District Court agreed and sua

sponte dismissed Manning’s complaint with prejudice pursuant to 28 U.S.C. § 1915A(b).

This appeal followed.1

       State prosecutors are afforded absolute immunity from civil suit under § 1983 for

the initiation and pursuit of criminal prosecutions. Imbler v. Pachtman, 424 U.S. 409,

431 (1976). They also enjoy absolute immunity for actions undertaken in preparation for

judicial proceedings or for trial, as long as those actions occur in the course of their roles

as prosecutors. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Supervisory

prosecutors are also absolutely immune both from suits for acts undertaken in relation to

an individual trial, and from suits charging that they failed to provide adequate training


1
 We have jurisdiction pursuant to 28 U.S.C. § 1291, and our review of the District
Court’s sua sponte dismissal of Manning’s complaint is plenary. See Allah v. Seiverling,
229 F.3d 220, 223 (3d Cir. 2000). To survive dismissal, a plaintiff’s complaint must
“contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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and supervision. Van de Kamp v. Goldstein, 555 U.S. 335, 346-49 (2009). Here,

Manning’s complaint sought monetary relief from ADA Mills and DA Fogal, both of

whom are absolutely immune from suit under § 1983. Accordingly, the District Court

properly dismissed Manning’s complaint as to the two prosecutors.

       We also agree with the District Court that both the Borough of Chambersburg and

Franklin County cannot be held liable under § 1983. Counties and municipalities cannot

be held constitutionally liable under the theory of respondeat superior. See City of

Canton v. Harris, 489 U.S. 378, 385 (1989); Monell v. Dep’t of Soc. Serv., 436 U.S. 658,

690-91 (1978). They can be held liable only when the execution of an official policy or

custom leads to a constitutional transgression. Monell, 436 U.S. at 694; see also Beck v.

City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996). Nowhere in his complaint did

Manning allege that his claimed injuries were inflicted by such a policy or custom.

Accordingly, the District Court properly dismissed his complaint as to the Borough of

Chambersburg and Franklin County.

       Finally, the District Court properly determined that the Commonwealth of

Pennsylvania is entitled to Eleventh Amendment immunity. The Eleventh Amendment

protects a state from a § 1983 suit, unless the state has waived its own immunity, see

MCI Telecomm. Corp. v. Bell Atl.-Pa., 271 F.3d 491, 503-04 (3d Cir. 2001), and

Pennsylvania has expressly withheld its consent to be sued. See Lavia v. Pa. Dep’t of

Corr., 224 F.3d 190, 195 (3d Cir. 2000); see also 42 Pa. Cons. Stat. § 8521(b).

       In sum, the District Court properly dismissed Manning’s complaint based on

prosecutorial immunity, Eleventh Amendment immunity, and Manning’s failure to

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establish that his alleged injuries were the result of the execution of an official municipal

or county custom or policy. Under the circumstances presented, the District Court did

not abuse its discretion in dismissing Manning’s complaint without offering leave to

amend. See Grayson v. Mayview State Hosp., 293 F.3d 103, 110-11 (3d Cir. 2002). For

the foregoing reasons, we grant the Appellees’ motion for summary action and will

summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

Manning’s motion to introduce newly obtained evidence is denied.2




2
  To the extent that Manning is attempting to challenge his convictions, such challenges
are only cognizable in a habeas petition pursuant to 28 U.S.C. § 2254 after exhausting
state remedies as required by 28 U.S.C. § 2254(b) & (c). See Preiser v. Rodriguez, 411
U.S. 475, 500 (1973).
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