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McCann v. Borough of Magnolia

United States District Court, D. New Jersey

April 7, 2014

ROBERT McCANN, Plaintiff,
THE BOROUGH OF MAGNOLIA, et al., Defendants.

Mr. Robert McCann, Sicklerville, NJ, Plaintiff Pro Se.


JEROME B. SIMANDLE, Chief District Judge.


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 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.


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 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.)

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.) 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 ...

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