The opinion of the court was delivered by: CANNELLA
CANNELLA, District Judge:
In this action for damages brought by Fernando Vargas (a prison inmate) against Pablo Correa (a prison guard) and the City of New York (Correa's employer), the Court finds for the plaintiff and against the defendant (Correa) in that Vargas' constitutional rights as protected by 42 U.S.C. § 1983 were violated when Correa physically attacked him.
The Court finds the facts in this case to be as follows: On February 10, 1974, plaintiff Fernando Vargas (then serving concurrent sentences of twenty (20) years upon a conviction of manslaughter and seven (7) years upon a conviction of possession of a weapon) was incarcerated in the New York City Bronx House of Detention, having been transferred from the Auburn Correctional Facility approximately two weeks earlier in connection with an indictment for attempted homicide then pending against him in the Bronx. The plaintiff, who is 5 feet 4 inch tall and weighed 116 lbs., was then incarcerated in that section of the institution referred to as Four South. At approximately 2:30 p.m. on February 10, the plaintiff and seven or eight other inmates were watching television. They had been watching a movie about Abraham Lincoln for about an hour and a half when the defendant Pablo Correa, a correction officer, came along and changed the channel so that he could watch a basketball game. The television (which was provided for the inmates' use) is situated behind a row of bars in a corridor to which the prisoners have no access. It is turned on and off by the guards, who have access to a switch box which controls the electricity on the floor. Although the prisoners cannot change the channel manually in that the bars keep them approximately four feet from the television, a method had been devised whereby the inmates could change the channel through the use of a mop handle which fits through the bars.
After Correa had changed the channel, the inmates who had been watching television began to object. This minor dispute quickly developed into a heated argument between Vargas and Correa, with each vituperatively cursing the other. At this point, Correa "challenged" Vargas to enter the guard's corridor and change the channel himself. Correa then opened the gates which otherwise prevented Vargas from entering the corridor. Vargas passed through the two opened gates and changed the channel. Correa then attacked him and punched him so that he was thrown against the bars and onto the floor. As Vargas stood up, he picked up a chair, but quickly put it down when he saw Correa reach into his pocket for what Vargas assumed to be a knife. Although no knife was in fact drawn, Correa again attacked and hit Vargas. Correa then sounded an alarm and several other correctional officers rushed to the scene. Vargas never raised the chair over his head, or hit Correa.
As a result of the attack, Vargas' face and neck were hurt. He was taken to the medical clinic for treatment but refused to sign the doctor's report, which was not introduced into evidence. Vargas said that his neck and right hand were stiff and that he felt "all messed up."
A. Liability under 42 U.S.C. § 1983
Based upon the above facts and applying the legal standard set forth in Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973), cert. denied, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 324 (1973), the Court finds that plaintiff has proven a violation of 42 U.S.C. § 1983. In Johnson at 1029, the court of appeals held that a pretrial detainee's allegation that while he
was being checked back into the House of Detention, Officer Fuller reprimanded Johnson and other men for a claimed failure to follow instructions; that when Johnson endeavored to explain that they were doing only what another officer had told them to do, Officer Fuller rushed into the holding cell, grabbed him by the collar and struck him twice on the head with something enclosed in the officer's fist;
stated a claim on which relief could be granted under § 1983.
Analytically, Judge Friendly declined to rely upon the eighth amendment's prohibition of cruel and unusual punishment, holding instead,
that, both before and after sentence, constitutional protection against police brutality is not limited to conduct violating the specific command of the Eighth Amendment or, as in Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), of the Fourth. Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952), must stand for the proposition that, quite apart from any "specific" of the Bill of Rights, ...