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Smith v. Clapp

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


decided: December 7, 1970.

CLARENCE L. SMITH, APPELLANT,
v.
ALFRED C. CLAPP, ESQ.

Biggs, Van Dusen and Rosenn, Circuit Judges.

Author: Per Curiam

Opinion OF THE COURT

This case is before the court on appeal from a District Court order of June 27, 1969, dismissing a civil complaint alleged to be based on 42 U.S.C. §§ 1983 and 1985*fn1 and 28 U.S.C. § 1343 (paragraph 8) after a hearing had been held on defendant's timely motion to dismiss the complaint.

The complaint is based on the contention that defendant, as counsel for defendant in a state criminal murder proceeding, is liable for malpractice and negligence in permitting defendant to be tried*fn2 without a valid Grand Jury indictment having been returned against him.*fn3 This contention must be rejected since the "claim * * * amounts to no more than a tort claim for malpractice and as such is not cognizable under the Civil Rights Act." See Isenberg v. Prasse, 433 F.2d 449 (3rd Cir. 1970). Under these circumstances, it is unnecessary to discuss the other reasons*fn4 relied on by the District Court in the Memorandum filed with its June 27, 1969, order.

The order of the District Court will be affirmed.


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