The opinion of the court was delivered by: CARTER
This civil rights complaint lists constitutional and statutory violations which allegedly occurred when plaintiff was struck in the face by Carl Hunter, a guard at the Metropolitan Correctional Center ("MCC"). Soon thereafter, plaintiff filed this action Pro se against Hunter and his superiors for a declaratory judgment, damages, and equitable relief.
He now moves for default and summary judgment. At the time of the altercation, defendants Taylor, Johnson, and Smith were, respectively, the warden, associate warden, and a captain at the MCC. They now move to dismiss the claims against them under F.R.Civ.P. 12(b)(1) and 12(b)(6).
For the reasons set forth below, their motion is granted and plaintiff's motions are denied. No motion has been made on behalf of defendant Hunter, and the action against him survives.
Plaintiff moves for a default judgment based on defendants' failure to answer or otherwise appear by August 5, 1977. Nonetheless, the record shows that this case was placed on the suspense calendar by order of this court dated July 12, 1977, pending an investigation by the Department of Justice into whether the United States Attorney would be authorized to represent the defendants. Within three weeks of the case's removal from the suspense calendar, the United States Attorney appeared on behalf of Taylor, Johnson, and Smith by filing the instant motion. Delay under these circumstances does not amount to a default. No answer was filed on behalf of Hunter, because the United States Attorney erroneously believed that he had not been served with the complaint. Upon learning, 3 weeks later, that Hunter had indeed been served, the United States Attorney promptly answered for him. The default here is merely technical; plaintiff was not prejudiced by the delay. Accordingly, a default judgment is not warranted. See 10 Wright & Miller, Federal Practice and Procedure : Civil § 2685 and cases cited therein.
Plaintiff also moves for summary judgment. Summary judgment may be granted only where there are no material issues to be tried. FLLI Moretti Cereali S. p. A. v. Continental Grain Co., 563 F.2d 563, 565 (2d Cir. 1977). Here the principal issue is still contested. Plaintiff alleges that he was struck for no reason; defendant Hunter claims that he acted in self-defense after being threatened. Under these circumstances, summary judgment is not appropriate. Plaintiff's motions are therefore denied.
Plaintiff invokes jurisdiction of this court under 18 U.S.C. § 4081, 28 U.S.C. § 1346, 28 U.S.C. § 2671, 18 U.S.C. §§ 241, 242,
42 U.S.C. § 1985(3), 42 U.S.C. § 1986, and a myriad of constitutional provisions. Defendants contend that none of the statutes confer jurisdiction over a suit for damages against federal officials acting in their official capacities. Defendants concede this court's jurisdiction over a suit for damages arising directly from the Constitution in which they are sued in their individual capacities, but they argue that plaintiff has failed to state a cause of action.
Subject Matter Jurisdiction
Lack of jurisdiction under the first five cited statutes is clear. 18 U.S.C. § 4081 provides:
"The Federal penal and correctional institutions shall be so planned and limited in size as to facilitate the development of an integrated system which will assure the proper classification and segregation of Federal prisoners according to the nature of the offenses committed, the character and mental condition of the prisoners, and such other factors as should be considered in providing an individualized system of discipline, care, and treatment of the persons committed to such institutions."
There is no evidence that Congress intended prisoners to have a private cause of action for damages against prison officials for violation of this provision. Nor is there any indication of how defendants violated the statutory mandate or how such a violation contributed to plaintiff's injuries. Lack of jurisdiction is also clear under 28 U.S.C. § 1346 and 28 U.S.C. § 2671. Those provisions relate to suits against the United States, which is not named as a party here. In addition, 18 U.S.C. §§ 241, 242 are criminal statutes, which do not create private rights of action for their violation. Therefore, the claims predicated on violations of the statutes cited in this paragraph are dismissed pursuant to F.R.Civ.P. 12(b)(1).
Whether there is jurisdiction to entertain plaintiff's claim under 42 U.S.C. § 1985(3) is less clear.
Defendant cites Williams v. Halperin, 360 F. Supp. 554, 556 (S.D.N.Y.1973) (Pollack, J.) and Boruski v. Stewart, 381 F. Supp. 529, 534 (S.D.N.Y.1974) (Pollack, J.) for the proposition that 1985(3)"s prohibition of conspiracies to deprive persons of their civil rights does not apply to federal officers acting under color of federal law. More recently, in Lofland v. Meyers, 442 F. Supp. 955 (S.D.N.Y.1977), Judge Werker wrote:
"As to section 1985, it is the law of this Circuit that section 1985 of Title 42 does not permit relief against the actions of federal officers acting under color of Federal law." (emphasis in original)
442 F. Supp. 957. Thus there is considerable authority in this court for the view espoused by defendants.
The only Second Circuit case on point is Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949). In that case, Judge Learned Hand refused to apply § 1985(3) to the actions of federal officers acting under color of federal law on the theory that § 1985, like § 1983, applied exclusively to persons acting under color of State law. Judge Hand acknowledged that § 1985(3) applied in terms to "any person" and did not contain § 1983's qualifying phrase "acting under color of state law." He nevertheless limited the scope of § 1985(3) to avoid ...