The opinion of the court was delivered by: MARSH
He asserts jurisdiction under § 1983, 42 U.S.C., the Civil Rights Act, § 1343, 28 U.S.C., and the Fourteenth Amendment § 1.
The allegations of the complaint disclose that plaintiff while performing compulsory prison work on a grossly defective machine suffered the amputation of four fingers on his right hand "due to the erratic operation" of the machine. Further, that by reason of this permanent disability, he "has been deprived of his health and enjoyment of life without just compensation, and without due process of law, in violation of the Fourteenth Amendment, par. 1 of the Constitution of the United States, by the misfeasance and malfeasance of defendants."
The defendants moved to dismiss the complaint for lack of jurisdiction over the subject matter and for failure to state a cause of action upon which relief can be granted, "in that there is no alleged violation of the plaintiff's civil rights or any other right."
In our opinion, the motion should be granted for failure to state a claim upon which relief can be granted (Rule 12(b)(6), Fed.R.Civ.P) under the statutes and the Fourteenth Amendment which plaintiff invoked.
Plaintiff's brief correctly states:
"The [Civil Rights] Act prescribes two elements as requisite for recovery: (1) the conduct complained of must have been done by some person acting under color of law; and (2) such conduct must have subjected the complainant to the deprivation of rights, privileges, or immunities secured to him by the Constitution and laws of the United States."
We think the defendants must concede the presence of the first element, but the court is unable to perceive the presence of the second.
No case exactly in point has been called to our attention, nor have we found one. Compulsory prison work does not impose involuntary servitude in violation of the Thirteenth Amendment of the Constitution of the United States. Draper v. Rhay, 315 F.2d 193 (9th Cir. 1963).
An unintentional common law tort does not deprive an injured person, be he prisoner or not, of any constitutional rights secured or guaranteed by the Fourteenth Amendment or the laws of the United States.
Counsel for the plaintiff orally argued that the "right" of which plaintiff was deprived was his "right not to be injured", - his "right to be secure in his person". All persons in the country enjoy that right and may bring common law actions in the state courts, and, where there is diversity of citizenship, in the federal courts to recover damages for the unintentional invasion thereof; but nowhere have we found authority for the proposition that such right is a constitutional right, or is guaranteed by a law of the United States. Deprivation of civil rights is not aimed at common law negligence, but at deprivation of rights secured by the Fourteenth Amendment, usually the denial of citizen rights by official misapplication or perversion of laws establishing procedural safeguards in the nature of due process.