
    Robert and Susie GRAHAM, Plaintiffs, v. DISTRICT OF COLUMBIA and Captain Robert S. Shuttleworth, Defendants.
    No. 663-67.
    United States District Court District of Columbia.
    June 16, 1969.
    Clement T. Cooper, Washington, D. C., for plaintiffs.
    Matthew J. Mullaney, Jr., Asst. Corp. Counsel for District of Columbia, for defendants.
   OPINION

HOLTZOFF, District Judge.

This is an action against the District of Columbia for damages for personal injuries sustained by the male plaintiff while he was a prisoner under arrest in a cell block of a police station in the District of Columbia. The injuries are claimed to have been sustained by reason of the fact that he was attacked by a fellow prisoner. He contends that the District of Columbia is liable for negligence in not preventing the attack or in failing to suppress it after it started.

It is clear to the Court that the plaintiff has no cause of action because of governmental immunity of the District of Columbia. The Government of the District of Columbia is not liable for damages sustained as a result of negligence in the performance of a governmental function. Maintaining the Police Department and the prisons are obviously governmental functions and, therefore, there is no liability. Congress alone can modify the law on this point, Calomeris v. District of Columbia, 96 U.S.App.D.C. 364, 226 F.2d 266.

Counsel for the plaintiff relies on the ease of Cohen v. United States, 252 F.Supp. 679, which was affirmed by the Court of Appeals for the Fifth Circuit in 389 F.2d 689. That also involved an action by a prisoner for damages sustained as a result of an assault by a fellow prisoner. The case, however, is entirely distinct from the instant case. The action in the Cohen case was brought against the United States because the plaintiff was a prisoner in a Federal penitentiary. He brought his action under the Federal Tort Claims Act by which the United States waived its immunity to suits in tort, specifically a tort consisting of negligence. The Federal Tort Claims Act, as has been held time and time again, does not extend to the District of Columbia and the governmental immunity of the District of Columbia in the performance of governmental functions still persists, Calomeris v. District of Columbia, supra.

It is clear to the Court that there is no cause of action and the complaint is dismissed.  