                                                      NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                              No. 14-2077
                              ___________

                          ROBERT MCCANN,

                                Appellant

                                    v.

      THE BOROUGH OF MAGNOLIA; BETTY ANN COWLING-CARSON,
  HONORABLE MAYOR, BORO OF MAGNOLIA (PERSONALLY AND IN HER
OFFICIAL CAPACITY); JOHN EVANS, CHIEF OF POLICE, BORO OF MAGNOLIA
   (PERSONALLY AND IN HIS OFFICIAL CAPACITY); OFFICER SHERMAN,
  PATROLMAN, BORO OF MAGNOLIA (PERSONALLY AND IN HIS OFFICIAL
 CAPACITY); HON. DANIEL BERNARDIN, MUNICIPAL COURT JUDGE, BORO
 OF MAGNOLIA (PERSONALLY AND IN HIS OFFICIAL CAPACITY); HOWARD
   LONG, PROSECUTOR, BORO OF MAGNOLIA (PERSONALLY AND IN HIS
                        OFFICIAL CAPACITY)
                ____________________________________

              On Appeal from the United States District Court
                        for the District of New Jersey
                   (D.C. Civil Action No. 14-cv-00170)
              District Judge: Honorable Jerome B. Simandle
               ____________________________________

               Submitted Pursuant to Third Circuit LAR 34.1(a)
                              October 21, 2014
         Before: CHAGARES, JORDAN and GARTH, Circuit Judges

                    (Opinion filed: November 5, 2014)

                              ___________
                                        OPINION*
                                       ___________

PER CURIAM

       Robert McCann, proceeding pro se, appeals from an order of the United States

District Court for the District of New Jersey dismissing his civil rights complaint

pursuant to 28 U.S.C. § 1915(e)(2)(B). We will affirm.

       In January 2013, McCann returned to his apartment in Magnolia, New Jersey, to

discover that he had been evicted. McCann contacted the Magnolia Police Department,

which denied his request to file a complaint. He also complained to Magnolia’s Mayor

and Borough Counsel. Two weeks later, McCann was permitted to return to the

apartment, but several items of personal property were damaged or missing. McCann

filed a complaint with the Borough of Magnolia Municipal Court, which concluded that

there was “no probable cause to sustain the charges.”

       Approximately one year later, McCann filed a complaint in the District Court,

alleging violations of his due process and equal protection rights. He named as

defendants the Borough of Magnolia, its Mayor, the Chief of Police and a police officer,

a Municipal Court judge, and the Borough prosecutor. The District Court reviewed the

compliant pursuant to 28 U.S.C. § 1915(e)(2)(B), dismissed it sua sponte for failure to

state a claim, and concluded that amendment of the complaint would be futile. McCann

filed a timely notice of appeal.



*
 The disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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       We have jurisdiction under 28 U.S.C. § 1291, and exercise plenary review over

the District Court’s sua sponte dismissal of the complaint. See Allah v. Seiverling, 229

F.3d 220, 223 (3d Cir. 2000). The legal standard for dismissing a complaint for failure to

state a claim under § 1915(e)(2)(B) is the same as that for dismissing a complaint

pursuant to a motion filed under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

See id. “To survive a motion to dismiss, a 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)). If a complaint is subject to dismissal, “a district court must permit a

curative amendment unless such an amendment would be inequitable or futile.” Phillips

v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).

       The District Court properly dismissed McCann’s complaint. Relief may not be

granted on McCann’s claim that a police officer improperly denied his request to file a

criminal complaint and failed to investigate his eviction. See Linda R.S. v. Richard D.,

410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest in the

prosecution or nonprosecution of another.”); Mitchell v. McNeil, 487 F.3d 374, 378 (6th

Cir. 2007) (holding that “[t]here is no statutory or common law right, much less a

constitutional right, to an investigation.”). Because no claim against the police officer

survives, and because he does not allege their direct involvement, McCann cannot

maintain claims against the Borough, its Mayor, and the Chief of Police. See Williams v.

West Chester, 891 F.2d 458, 467 (3d Cir. 1989) (stating that “West Chester cannot be

vicariously liable . . . unless one of West Chester’s employees is primarily liable under

                                               3
section 1983 itself.”); Brockinton v. City of Sherwood, Ark., 503 F.3d 667, 673 (8th Cir.

2007) (holding that plaintiff’s failure-to-train claim failed because facts did not establish

an underlying constitutional violation). Moreover, the judge and the prosecutor are

immune from McCann’s suit for damages because their alleged actions were performed

solely in their judicial and prosecutorial capacities. See Mireles v. Waco, 502 U.S. 9, 12

(1991) (per curiam) (holding that judicial officers have absolute immunity from suit when

acting within their official capacities); Kulwicki v. Dawson, 969 F.2d 1454, 1463-64 (3d

Cir. 1992) (stating that prosecutorial immunity bars suit against district attorneys for their

decision to initiate a prosecution). Finally, in light of the nature of the factual allegations

set forth in McCann’s complaint, we further conclude that the District Court did not

abuse its discretion in determining that allowing him leave to amend his complaint would

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

2002).

         For these reasons, we will affirm the District Court’s order.




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