Thomas Wesley Nelson v. Eugene Stratton, Attorney at Law

Fifth Circuit

Thomas Wesley Nelson v. Eugene Stratton, Attorney at Law

469 F.2d 1155

CourtCourt of Appeals for the Fifth Circuit

DecidedDecember 11, 1972

Docket72-2645

StatusPublished

Cited by12 cases

This text of 469 F.2d 1155 (Thomas Wesley Nelson v. Eugene Stratton, Attorney at Law) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Thomas Wesley Nelson v. Eugene Stratton, Attorney at Law, 469 F.2d 1155 (5th Cir. 1972).

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Opinion

PER CURIAM:

Thomas Wesley Nelson has appealed from the district court’s dismissal of his Civil Rights 1 complaint which named as defendant the attorney who represented him in a criminal ease. We affirm the ruling below.

The appellant has alleged that the attorney did not accord effective legal representation in several enumerated respects, as the result of which Nelson was convicted of a felony in a Texas state court. Nelson further alleges that the attorney was retained for him by his former employer.

The district court held that the complaint failed to state a claim under 42 U.S.C. § 1983, since a retained counsel is not acting under color of state law within the purview of the statute. We agree. United States ex rel. Gittlemacker v. Commonwealth of Pa., E.D. Pa.1968, 281 F.Supp. 175, affirmed 3rd Cir. 1969, 413 F.2d 84, cert. denied 396 U.S. 1046, 90 S.Ct. 696, 24 L.Ed.2d 691. Our statement in O’Brien v. Colbath, 5th Cir. 1972, 465 F.2d 358, [1972] that “in our opinion [§ 1983] was never intended as a vehicle for prosecuting malpractice suits against court-appointed attorneys” is all the more applicable to suits against one’s former privately-retained counsel. The order appealed from is affirmed.

Affirmed.

1

. 42 U.S.C. § 1983.

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PER CURIAM:

Thomas Wesley Nelson has appealed from the district court’s dismissal of his Civil Rights 1 complaint which named as defendant the attorney who represented him in a criminal ease. We affirm the ruling below.

The appellant has alleged that the attorney did not accord effective legal representation in several enumerated respects, as the result of which Nelson was convicted of a felony in a Texas state court. Nelson further alleges that the attorney was retained for him by his former employer.

The district court held that the complaint failed to state a claim under 42 U.S.C. § 1983, since a retained counsel is not acting under color of state law within the purview of the statute. We agree. United States ex rel. Gittlemacker v. Commonwealth of Pa., E.D. Pa.1968, 281 F.Supp. 175, affirmed 3rd Cir. 1969, 413 F.2d 84, cert. denied 396 U.S. 1046, 90 S.Ct. 696, 24 L.Ed.2d 691. Our statement in O’Brien v. Colbath, 5th Cir. 1972, 465 F.2d 358, [1972] that “in our opinion [§ 1983] was never intended as a vehicle for prosecuting malpractice suits against court-appointed attorneys” is all the more applicable to suits against one’s former privately-retained counsel. The order appealed from is affirmed.

Affirmed.

1

. 42 U.S.C. § 1983.

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469 F.2d 1155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-wesley-nelson-v-eugene-stratton-attorney-at-law-ca5-1972.

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