Thomas v. Howard, 71-1288.
| Decision Date | 09 February 1972 |
| Docket Number | No. 71-1288.,71-1288. |
| Citation | 455 F.2d 228 |
| Parties | John Charles THOMAS, Appellant, v. Harry R. HOWARD, Esquire. |
| Court | U.S. Court of Appeals — Third Circuit |
John C. Thomas, pro se.
George F. Kugler, Jr., Atty. Gen., Joseph T. Maloney, Trenton, N. J. (Stephen Skillman, Asst. Atty. Gen., Joseph T. Maloney, Deputy Atty. Gen., on the brief), for appellee.
Before ADAMS and MAX ROSEN, Circuit Judges, and STAPLETON, District Judge.
In this case, appellant, a prisoner of the State of New Jersey, is suing, under the Civil Rights Act, 42 U.S.C. § 1983 (1970), the attorney who voluntarily represented him during post-conviction proceedings, on the ground that the defendant "did not fully represent your plaintiff to the best of his ability." Although appellant demanded money damages, his brief is addressed to the legality of his conviction. However, that matter is not properly before us in this case because it was not raised or considered below. Furthermore, the complaint may not be construed as a petition for habeas corpus, because to do so here would defeat the cause of action since a private attorney would not be a proper party defendant to such action.
After hearing oral argument, the district court granted defendant's motion for summary judgment. We conclude that the district court was correct.
Appellant's cause of action, if any existed, in the absence of facts indicating otherwise, accrued no later than February 28, 1968, when the attorney-client relationship between the parties terminated. Because the Civil Rights Act contains no statute of limitations, the federal court must look to the law of the state in which it sits. Hughes v. Smith, 389 F.2d 42 (3rd Cir. 1968); Henig v. Odorioso, 385 F.2d 491 (3rd Cir. 1967). The New Jersey statute of limitations applicable to this case would be N.J.S.A. 2A:14-2, which prescribes a period of two years. Since appellant did not file this action until March 25, 1970, his cause of action has been outlawed by the statute of limitations.
Furthermore, on the facts of this case, defendant, although acting voluntarily by assignment from a pool of attorneys of the Essex County Legal Aid-Criminal Division, was performing his duties solely for appellant, to whom he owed the absolute duty of loyalty, as if he were a privately retained attorney. N.J.S.A. 2A:158A-11. Therefore, the affidavits demonstrate that defendant was not acting "under color of...
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Voytko v. Ramada Inn of Atlantic City, Civ. A. No. 76-0142 and 76-0685.
...whether retained, Steward v. Meeker, 459 F.2d 669, 670 (3d Cir. 1972), or appointed to represent an indigent defendant, Thomas v. Howard, 455 F.2d 228, 229 (3d Cir. 1972). Similarly, attorneys who represent private clients in civil actions where the state has no interest, where no state sta......
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Spencer v. Lee
...466 F.2d 864 (9th Cir.1972), also involves an attorney. In this case it was a retained attorney. The same is true of Thomas v. Howard, 455 F.2d 228 (3d Cir.1972) and Mulligan v. Schlachter, 389 F.2d 231 (6th Cir.1968).2 In Del's Big Saver Foods, Inc. v. Carpenter Cook, Inc., 795 F.2d 1344 (......
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Black v. Bayer, 81-1646
...pursuant to 28 U.S.C. § 1915(d). It dismissed the complaint as to Pelletreau and Bayer on the authority of Thomas v. Howard, 455 F.2d 228 (3d Cir. 1972) (per curiam), which teaches that no state action surrounds the activities of private counsel. Black now appears to recognize that Polk Cou......
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Graham v. Main, Civil Action No. 10-5027 (SRC)
...to a defendant, such as determining trial strategy and whether to plead guilty, is not acting under color of state law); Thomas v. Howard, 455 F.2d 228 (3d Cir. 1972) (court-appointed pool attorney does not act under color of state law). Even if assigned counsel was a privately retained law......