George Dallas Thompson v. Jimmy Williams , 782 F.2d 1043 ( 1985 )

782 F.2d 1043

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
GEORGE DALLAS THOMPSON, Plaintiff-Appellant,
v.
JIMMY WILLIAMS Defendant-Appellee.

84-3466

United States Court of Appeals, Sixth Circuit.

12/10/85

ORDER

1

BEFORE: ENGEL and MILBURN, Circuit Judges; and WOODS, District Judge.*

2

Thompson appeals pro se from the district court's judgment dismissing his complaint in this Bivens case. This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and Thompson's brief, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

3

Thompson was employed at the Post Office Annex in Cincinnati, Ohio. Thompson's complaint alleges that he was assaulted on verious occasions by a Post Office guard and suffered a broken rib during one altercation. A prior sua sponte dismissal of this complaint was reversed by this Court. After the defendant filed a motion to dismiss and the plaintiff filed a response, the district court again dismissed the case.

4

Because his action is against a federal official, it falls under the doctrine of Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397 (1971). Nevertheless, the Bivens case does not create a federal cause of action for every wrong committed under color of federal law. There must be a constitutional right involved. See Paul v. Davis, 424 U.S. 693, 698-99 (1976).

5

Thompson does not claim that the defendant was arresting him or otherwise performing an official duty when the alleged assaults occurred. It appears that Thompson and the defendant were merely fighting. So the district court was correct to hold that Thompson stated a state law tort claim for assault and battery and did not state a federal cause of action.

6

The judgment of the district court is affirmed under Rule 9(d)(3), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.

*

The Honorable George Woods, U.S. District Judge for the Eastern District of Michigan, sitting by designation