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May 18, 1984

DALE THOMAS, Warden of Metropolitan Correctional Center, and MR. JONES, Officer of the United States Postal Inspector, Defendants.

The opinion of the court was delivered by: POLLACK

MILTON POLLACK, Senior District Judge

Plaintiff, a federal prisoner, brought this pro se civil rights action *fn1" against Dale Thomas, the Warden of the federal Metropolitan Correctional Facility ("MCC") in Manhattan, and Daniel Jones, a United States Postal Inspector, to recover damages and obtain certain injunctive relief to remedy alleged physical and mental injuries he claims defendant Jones inflicted upon him, allegedly in violation of plaintiff's constitutional rights under the fourth and eighth amendments.

 The complaint alleges that Jones, while escorting plaintiff to the MCC from the adjacent federal court house after a proceeding related to plaintiff's federal robbery prosecution, tightened handcuffs on his wrists so as to cause pain, threw him up against a court house wall, hit and kicked him, and, while motioning for his gun, threatened him by saying "I'll get you."

 The defendants have moved, pursuant to Rules 12(b)(1), (5), and (6) and 56 of the Federal Rules of Civil Procedure, for an order dismissing the complaint, and for summary judgment. The Court has received no responsive papers to the defendants' motion. For the reasons which follow, summary judgment will be granted in favor of both defendants.

 Facts Underlying the Controversy

 On Decmeber 20, 1982, pursuant to the request of the Assistant United States Attorney ("AUSA") in charge of plaintiff's prosecution *fn2" plaintiff was produced from the MCC by the United States Marshal's Office and escorted by Postal Inspector Edwin Cuebas to the United States Attorney's office, then to the Part One Courtroom in the federal court house, and then back to the Marshal's detention area at the MCC, all for the purpose of obtaining an item of plaintiff's clothing for use in a scent identification procedure. Defendant Jones was an additional escort for plaintiff on the latter two legs of this walk.

 According to Jones' affidavit, either he or Cuebas placed handcuffs on plaintiff's arms in accordance with routine practice and without complaint from plaintiff, prior to their departing from the Part One Courtroom. Jones avers that when the group -- which then also included both the AUSA and plaintiff's defense counsel -- exited the court house elevator, plaintiff attempted to walk quickly ahead of Cuebas and Jones, and Jones, in response, "placed [his] hand firmly on Mr. Anderson's left bicep in order to restrain his accelerated pace and maintain custody of him."

 Jones' affidavit further states that plaintiff then attempted to jerk and pull away from Jones, and complained loudly that Jones was treating him like a dog. Jones specifically denies pushing or throwing plaintiff against a wall, striking or kicking him, motioning for his gun, or threatening him verbally.

 Affidavits from Cuebas and the attorney who then represented plaintiff, submitted in support of defendants' motion, corroborate Jones' statements that he did grab plaintiff's arm when plaintiff sought to walk ahead of his escorts, that Anderson tried to jerk away from Jones, but that Jones neither struck nor kicked plaintiff, nor pushed or threw plaintiff against the wall, nor motioned for his weapon, nor threatened plaintiff verbally.

 Plaintiff's complaint states that there were no physical signs of the injuries allegedly incurred by him, but further states "I did make attempts to see the Doctor here at M.C.C. for nervousness, headaches, but the doctor was out for a couple of days." Affidavits submitted on behalf of defendants indicate a physician's assistant was physically present at MCC at all times in December, 1982; that a doctor was on duty at the MCC on December 20-23, 27, and 28, 1982 and January 3, 1983, and that there is no record of any medical complaints from plaintiff during the period Decmeber 20, 1982 to January 3, 1983.


 A. Liability of Jones

 Even assuming that Jones' conduct with respect to plaintiff was tortious as a matter of state law, as a federal officer charged with official custodial duties over plaintiff, Jones is absolutely immune from liability for common law torts committed within the scope of those duties. Huntington Towers, Ltd. v. Franklin National Bank, 559 F.2d 863, 870 (2d Cir. 1977), cert. denied 434 U.S. 1012, 98 S. Ct. 726, 54 L. Ed. 2d 756 (1978) ("federal officials are not personally liable for alleged torts based upon acts committed within the scope of their official duties requiring the exercise of judgment or discretion"); Wyler v. United States, 725 F.2d 156, 159 (2d Cir. 1983); see also George v. Kay, 632 F.2d 1103, 1105 (4th Cir. 1980), cert. denied, 450 U.S. 1029, 68 L. Ed. 2d 224, 101 S. Ct. 1738 (1981)(federal postal inspector entitled to absolute immunity from common law tort liability "if the acts complained of were within the outer perimeter of [his] authority").

 This absolute immunity, however, does not serve to shield a federal official from liability arising from harms caused by unconstitutional conduct. *fn3" See, e.g., Bivens v. Six Unknown Named Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. ...

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