KNAPP, District Judge.
Plaintiff, then a prisoner in the Manhattan House of Detention for Men, brought this action for money damages under 42 U.S.C. Section 1983 against defendants A. Glick, the Warden, and against a corrections officer identified only as "Badge # 1765", upon whom service of process has not been possible because it has been established that the person to whom that badge is assigned was not working in the House of Detention on the day in question. Defendant Glick moves to dismiss the complaint against him for failure to state a cause of action. The motion is granted.
The complaint, though inartistic, is eloquent and presents a picture of an unmotivated assault by a prison guard. The assault was apparently precipitated by the guard's conclusion that the plaintiff was acting in a disrespectful manner. The assault is alleged to have taken place after the plaintiff had been returned from an appearance in court. There is no suggestion that the guard intended to hinder or prevent the plaintiff from asserting his rights in any court, or that he was acting in reprisal for past assertions of such rights. It is not claimed that the assault was racially motivated or that it followed or preceded any other assault upon the plaintiff.
The case therefore seems to present the question whether every assault upon a prisoner giving rise to a tort action under state law becomes actionable under Section 1983 simply because the person assaulted was in custody and the tortfeasor was a prison guard.
Plaintiff has applied for the appointment of counsel. That application is granted and the Court appoints John Sprizzo, Esq., to determine whether there should be an application to this Court to file an amended complaint or whether an appeal from this order should be taken.