The opinion of the court was delivered by: Foreman, District Judge:
This case is presently before the Court on the Motion of the
defendant to Dismiss for Failure to State a Claim Upon Which
Relief Can Be Granted (Federal Rules of Civil Procedure, Rule
Plaintiff, a prisoner at the Illinois State Penitentiary,
Menard, Illinois, has filed a suit pursuant to 42 U.S.C. § 1983
alleging that defendant, a prison guard, struck him in the face
and thereby violated the Eighth and Fourteenth Amendments by
subjecting plaintiff to cruel and unusual punishment without due
process of law. Plaintiff seeks $50,000 compensatory damages for
superficial facial injuries and $750,000 punitive damages.
Viewing the complaint in the light most favorable to the
plaintiff and admitting as true all well pleaded facts, as the
Court is required to do for the purposes of this motion, Carroll
v. Morrison Hotel Corp., 149 F.2d 404, 406 (7th Cir. 1945), this
Court is unable to see in defendant's alleged actions the degree
of wrong-doing which would bring his conduct under 42 U.S.C. § 1983.
Not every action that constitutes a state law tort of assault,
even when it is committed under the color of state law, is
sufficient in and of itself to show a claim for relief under
42 U.S.C. § 1983, Kent v. Prasse, 385 F.2d 406, 407 (3rd Cir. 1967);
Davidson v. Dixon, 386 F. Supp. 482, 487 (D.Del. 1974). In order
to recover on a § 1983 claim, it is necessary for the plaintiff
to show intentional conduct by one acting under color of state
law which subjected him to the deprivation of rights, privileges,
or immunities secured to him by the Constitution and laws of the
United States, Kish v. County of Milwaukee, 441 F.2d 901, 904
(7th Cir. 1971); Basista v. Weir, 340 F.2d 74, 79 (3rd Cir.
1965); Davidson, supra, 386 F. Supp. at 487. The fact that a
prisoner is assaulted
or injured ". . . by state officials does not necessarily mean
that he is deprived of any right protected or secured by the
Constitution of laws of the United States," Screws v. United
States, 325 U.S. 91, 108-109, 65 S.Ct. 1031, 1039, 89 L.Ed. 1495
"The management by a few guards of large numbers of prisoners,
not usually the most gentle or tractable of men and women, may
require the occasional use of a degree of intentional force. Not
every push or shove, even if it may later seem unnecessary in the
peace of a judge's chambers, violates a person's constitutional
rights," Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973),
cert. denied in 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 32
(1973). To support liability, this Court believes the acts
challenged must do more than offend some fastidious squeamishness
or private sentimentalism. They must shock the conscience, Rochin
v. California,*fn2 324 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183
(1952), or constitute force that is "brutal", 342 U.S. at 174, 72
S.Ct. 205. "Thus, a plaintiff must show more than that he has
suffered an intentional tort at the hands of a defendant who was
acting under color of state law; he must prove acts which amount
to shocking or brutal conduct," Davidson v. Dixon, 386 F. Supp. 482,
488 (D.Del. 1974).
Here, plaintiff, who filed his complaint within "a half hour
after the initial incident occured [sic]" (plaintiff's complaint,
page two), has alleged suffering "superficial facial damages"
(complaint, page two) due to the single blow of defendant. A
single punch in the face by a prison guard does not constitute
cruel and unusual punishment, Fisher v. Turner, 335 F. Supp. 577,
579 (D.Utah, 1972); Cullum v. California Department of
Corrections, 267 F. Supp. 524 (N.D.Cal. 1967). Although a
spontaneous attack by a guard is "cruel" and it is hoped
"unusual," it does not fit any ordinary concept of punishment,
Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir. 1973), cert.
denied in 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 32 (1973). Nor
is such an assault sufficient to establish a violation of the due
process clause of the Fourteenth Amendment, Foster v. Jacob,
297 F. Supp. 299 (C.D.Cal. 1969).
This Court is of the opinion that plaintiff's complaint does
not meet the test, enunciated above, which would raise the degree
of wrong-doing involved up to a deprivation of a federally
guaranteed right, i.e., the act challenged is not one which
involves shocking or brutal conduct.
"Alleged assaults by state prison officials, without any
showing of a constitutional violation, are matters for
consideration of internal prison discipline of interest solely to
the state and actionable, if at all, in the state courts," Cole
v. Smith, 344 F.2d 721 (8th Cir. 1965). The general standard is
only in exceptional circumstances will a federal court interfere
with matters that involve the internal management of a state
prison, Butler v. Bensinger, 377 F. Supp. 870, 875 (N.D.Ill.
1974); United States ex rel. Lee v. People of the State of
Illinois, 343 F.2d 120, 121 (7th Cir. 1965). Since plaintiff has
failed to allege any violation of his constitutional rights, his
complaint based upon 42 U.S.C. § 1983 must be dismissed.
For the reasons stated herein defendant's Motion to Dismiss for
Failure to State a Claim Upon Which Relief Can Be Granted is
hereby granted and this case is accordingly dismissed.