John Isenberg, State Correctional Institution, Pittsburgh, Pennsylvania, Appellant, v. Arthur T. Prasse, State Correctional Institution, Camp Hill, Pennsylvania and Dr. Ernest T. Lewis, State Correctional Institution, Pittsburgh, Pennsylvania, 433 F.2d 449 (3d Cir. 1970)

This is an appeal from an order of the district court denying plaintiff's motion for leave to proceed in forma pauperis to file a civil rights complaint.

Plaintiff's complaint names as defendants the Commissioner of the Bureau of Corrections and a dentist employed by the Bureau at its Pittsburgh Correctional Institution. He alleges in effect that while a state prisoner he was the victim of malpractice by the defendant dentist in connection with the extraction of his teeth and the treatment of his gums. He alleges that such conduct constituted cruel and unusual punishment and a denial of equal protection under the United States Constitution.

The district court denied plaintiff's motion on the ground that plaintiff was seeking to commence an action which was barred by the statute of limitations. We do not reach the ground relied on by the district court because we think the denial of leave to proceed in forma pauperis was justified on the ground that the claim is clearly frivolous because it amounts to no more than a tort claim for malpractice and as such is not cognizable under the Civil Rights Act. See Fear v. Commonwealth of Pennsylvania, 413 F.2d 88 (3d Cir. 1969).

The order of the district court will be affirmed.