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July 17, 1978

Nelson HERNANDEZ, Plaintiff,
C. LATTIMORE, Nathaniel Mitchell, Hugh Herbert, N. Avignone and R. Brown, Correctional Officers, Defendants

The opinion of the court was delivered by: BRIEANT


 BRIEANT, District Judge.

 Plaintiff Nelson Hernandez is a federal prisoner incarcerated at relevant times at the Metropolitan Correctional Center (hereinafter "MCC"), a federal facility at 150 Park Row, New York City, and within this District. He is also known as Nelson Ralph Hernandez Avila and Hassan Abdul Haqq. Plaintiff filed this action alleging that he was deprived of his right under the Eighth Amendment to the United States Constitution to be free from cruel and unusual punishment, and of his right under the Fifth Amendment to be free from deprivation of liberty without due process of law.

 The complaint does not expressly assert a Fifth Amendment claim, and counsel for plaintiff informed the Court that no such claim is asserted at this time. The Court, however, at a pre-trial conference with the parties stated that it would allow amendment of the complaint at trial to include the claim, and in a pre-trial memorandum and answers to interrogatories plaintiff has asserted a due process claim. The Court will address itself to such a claim in this opinion.

 Subject matter jurisdiction exists under 28 U.S.C. § 1331(a). See Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946).

 This litigation is based on allegations of events said to have occurred on the night of October 4, 1976. At that time Hernandez was incarcerated at the MCC. *fn1" He alleges that he overturned a salad tray in the MCC cafeteria because a correctional officer stationed near the food service line refused to request additional silverware for him, or because the officer refused to request silverware to replace the plastic utensils that were available. After tossing the salad, Hernandez returned to his room. Soon thereafter the defendant officers, including the one who allegedly refused to request the silverware, came to Hernandez' room where they allegedly "gave him the stripsearch," and escorted him, fully clothed, into an elevator, finally depositing him in a holding area on the third floor of MCC. Such holding areas are commonly considered to be used for newly-arrived prisoners who await assignment to a room, for prisoners who present disciplinary problems and for prisoners who await psychiatric evaluation.

 Hernandez' complaint centers around what he alleges to have occurred in the elevator en route to the holding area. His version of the incident is that he was "punched" by defendant Lattimore while surrounded by all of the defendants, and was "kicked" by one of the other defendants. Complaint, para. 10. Hernandez alleges that this battery occurred without provocation or disobedience to orders on his part. He alleges resultant injuries to his face, mouth and body, as well as to his psyche. After this battery by one or more of the officers, during which he says the other officers stood by and offered no assistance to him, Hernandez claims that, while "bleeding profusely" he was deposited in the holding area where he received no medical treatment, although visited by a paramedic. Within the ensuing hour and a half, Hernandez was treated at Bellevue Hospital. Plaintiff has requested $60,000.00 as compensatory damages and $120,000.00 as punitive damages.

 Defendants plead a general denial and the affirmative defense that they acted in good faith upon a reasonable belief that their conduct was lawful. Defendants also assert in their answer that the Court lacks jurisdiction of the subject matter and that the complaint fails to state a claim upon which relief can be granted. In addition, defendant Lattimore counterclaims that it was plaintiff who first struck him and that Lattimore acted in self-defense. Lattimore demands damages of $5,000.00 to compensate his physical and emotional injuries and $10,000.00 as punitive damages.

 This action survived a prior motion to dismiss pursuant to 28 U.S.C. § 1915(d) made on the ground that Hernandez was not entitled to proceed in forma pauperis and had falsely represented his indigency. Familiarity with the Court's prior memorandum decision denying dismissal, dated February 7, 1978 is assumed. The Department of Justice is furnishing the defense here. However, any damages recovered by Hernandez will not be paid from public funds.

 All pre-trial discovery has been completed. The parties filed with the Court stipulations of fact and evidence, proposed exhibits and requests to charge. The Court had set a trial date of June 5, 1978.

 Then, by order to show cause brought May 23, 1978, and made returnable May 26, 1978, defendants moved to dismiss the federal claims for failure to state a claim upon which relief can be granted and to dismiss the pendent claims for lack of subject matter jurisdiction. Following a conference with counsel for both parties on May 25, 1978, the Court extended plaintiff's time to respond to the show cause order to May 31, 1978. The Court heard oral argument on May 31st and has considered all the papers, affidavits and briefs submitted in connection with the motion, which is being treated as if made pursuant to Rule 56, F.R.Civ.P. because matters outside the pleadings have been presented and considered. See Rule 12(b)(6), F.R.Civ.P.

 The motion must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Frankos v. LaVallee, 535 F.2d 1346, 1347 (2d Cir.), cert. denied 429 U.S. 918, 97 S. Ct. 310, 50 L. Ed. 2d 284 (1976). The allegations of the complaint must be accepted as true for purposes of dealing with the legal issues raised by the motion to dismiss the complaint, i.e., the legal sufficiency of the complaint. Walker Process Equip. v. Food Mach. & Chem. Corp., 382 U.S. 172, 174, 86 S. Ct. 347, 15 L. Ed. 2d 247 (1965); Gardner v. Toilet Goods Ass'n, 387 U.S. 167, 172, 87 S. Ct. 1526, 18 L. Ed. 2d 704 (1957); United States v. New Wrinkle Co., 342 U.S. 371, 373, 72 S. Ct. 350, 96 L. Ed. 417 (1952). All ambiguities must be resolved and reasonable inferences drawn in favor of the party against whom judgment is sought, Heyman v. Commerce and Industry Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975). In addition, in this Circuit, we are mindful of Heyman's admonition that

"This procedural weapon [the motion for summary judgment] is a drastic device since its prophylactic function, when exercised, cuts off a party's right to present his case to the jury." Heyman, supra at 1320. (Citation omitted).

 This is not the sort of prisoner's civil rights action where pro se opposition by a prisoner-plaintiff to a motion for summary judgment warrants special consideration by the Court, 6 Moore's Part 2, para. 56.17[8.-1], since Hernandez is ably represented ...

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