c30:No. 72-1935

McLAUGHLIN, Circuit Judge
(dissenting).
I must respectfully dissent from the conclusion reached by the majority as to defendants Everette, Smith, Hess and Brindle.
The Supreme Court’s decision in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) requires that the Civil Rights Act, particularly 42 U.S.C. § 1983, “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Id. at 187, 81 S.Ct. at 484. However, this should not be construed to mean that every tort constitutes a denial of rights, privileges and immunities secured by the Constitution and Laws of the United States simply because such tort is committed under “color of law”. Here, one inmate of a state correctional institute atrociously assaulted a fellow inmate, appellant herein. Appellant alleged that the presence of the defendants, Hess, Smith and Brindle (prison personnel), at the scene of the attack and their failure to adequately restrain the attacker constituted conduct under “color of law” and therefore a violation of federally guaranteed rights. These allegations are frivolous and clearly insufficient to establish a cause of action under 42 U.S.C. § 1983.
Appellant’s remedy should have been pursued in the State courts of the Commonwealth of Pennsylvania under general tort principles of the common law. Therefore, the district court properly dismissed appellant’s complaint against all defendants for failure to state a cause of action upon which relief can be granted.

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