Unpublished Dispositionronald Lee Wallace, Plaintiff-appellant, v. Philip Depalma, Defendant-appellee, 758 F.2d 654 (6th Cir. 1985)

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US Court of Appeals for the Sixth Circuit - 758 F.2d 654 (6th Cir. 1985) 2/19/85


BEFORE: ENGEL and JONES, Circuit Judges; and SPIEGEL, District Judge.* 

The plaintiff appeals the judgment dismissing his pro se civil rights action. He now moves for leave to proceed on appeal in forma pauperis and for appointment of counsel. Those motions were referred to this panel pursuant to Rule 9(a), Rules of the Sixth Circuit.

The plaintiff proceeded as a pauper in the district court. In the absence of certification under Rule 24(a), Federal Rules of Appellate Procedure, that the appeal is frivolous or taken for purposes of delay, the plaintiff need not make further application to proceed as a pauper in this Court. Therefore,

It is ORDERED that the motion for leave to proceed on appeal in forma pauperis be and it hereby is denied as superfluous.

In his complaint, the plaintiff asserted he had retained the services of the defendant, an attorney in private practice, to represent the plaintiff in a proposed action against the Lima State Hospital. He stated that the defendant failed to do anything on the case despite the acceptance of a retainer fee. He sought to recover both actual and punitive damages.

Attorneys in private practice who represent clients in civil matters do not act under the color of state law and are not subject to actions under 42 U.S.C. § 1983. See, e.g., Hill v. McClellan, 490 F.2d 859 (5th Cir. 1974). Claims of legal malpractice and breach of contract are matters of state law over which federal courts have no jurisdiction in the absence of diversity of citizenship. Fine v. City of New York, 529 F.2d 70, 74 (2d Cir. 1975). We, therefore, express no opinion concerning plaintiff's rights under applicable state law. The district court did not err in dismissing the plaintiff's action. Accordingly,

IT IS ORDERED that the motion for appointment of counsel be and it hereby is DENIED.

Upon examination of the records and the plaintiff's appellate briefs, this panel agrees unanimously that oral argument is not needed in this appeal. Rule 34(a), Federal Rules of Appellate Procedure. Therefore,

IT IS ORDERED that the district court's judgment of March 2, 1984 dismissing the plaintiff's action be and it hereby is AFFIRMED. Rule 9(d) (2), Rules of the Sixth Circuit.


The Honorable S. Arthur Spiegel, U.S. District Judge for the Southern District of Ohio, sitting by designation