James E. Bush, Appellant, v. William B. Robinson (warden), County Jail, Allegheny (countyof Allegheny)--dismissed 5/22/70, 442 F.2d 393 (3d Cir. 1971)

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US Court of Appeals for the Third Circuit - 442 F.2d 393 (3d Cir. 1971) Submitted on Briefs April 2, 1971. Decided April 15, 1971

James Bush, pro se.

Norman J. Cowie, Thomson, Rhodes & Grigsby, Pittsburgh, Pa., for appellee, County of Allegheny.

Maurice Louik, County Sol., Pittsburgh, Pa., for appellee, Robinson (Craig T. Stockdale, Asst. County Sol., Pittsburgh, Pa., on the brief).

Before FORMAN, SEITZ and ALDISERT, Circuit Judges.



Appellant allegedly contracted trench mouth in the County Prison of Allegheny County, Pennsylvania, while confined there awaiting trial. He brought a civil rights action under 42 U.S.C. 1983 which, upon motion, was dismissed by the district court. The action was properly dismissed against the County of Allegheny. A municipality is not a person contemplated by the Civil Rights Act of 1971. United States Exrel. Gittlemacker v. County of Philadelphia, 413 F.2d 84, 86 (3 Cir. 1969). The action was also properly dismissed against the Warden because the allegations contained in the complaint rose 'no higher than an averment of a tort.' United States ex rel. Gittlemacker v. County of Philadelphia, supra, 413 F.2d 84, 87. The negligence alleged by appellant is not cognizable under the Civil Rights Act.

The judgment of the district court will be affirmed.