Like Winston v. United States, 2 Cir., 305 F.2d 253 (1962), also decided this day, this ease presents the question of the United States’ liability for negligence in its handling of federal prisoners. In his complaint below, Carlos Muniz alleges that while confined in the federal prison at Danbury, Connecticut, he was set upon and beaten by twelve fellow inmates. The complaint charges negligence generally in not maintaining proper guards or segregation of prisoners in the prison yard; more specifically, it attacks the alleged action of a guard in locking plaintiff into a dormitory with his twelve assailants, who proceeded to beat him into insensibility and partial blindness, unrestrained by guards or other prisoners. The court below dismissed plaintiff’s action, relying on the precedents we declined to follow in Winston.

For the reasons detailed in Winston, we reverse this case as well. One point, however, the government presses here more assiduously than in Winston: that a damage action by a prisoner subjects to judicial- determination acts exclusively within the competence and authority of the Bureau of Prisons, under the direction of the Attorney General, 18 U.S.C. § 4042 (1958).

That section does indeed charge the Bureau with “management and regulation of all Federal penal and correctional[*287] institutions”; it imposes the duty to “provide * * * for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States, or held as witnesses or otherwise”; and to “provide for the protection, instruction, and discipline of all persons charged with or convicted of offenses against the United States.”

But a mere grant of authority cannot be taken as a blanket waiver of responsibility in its execution. Numerous federal agencies are vested with extensive administrative responsibilities. But it does not follow that their actions are immune from judicial review.

Nor does reference to Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), avail the government here. In Feres the Supreme Court refused to subject military actions to civilian judicial scrutiny. But the actions there in question were subject to military judicial review, under comprehensive laws enacted by Congress. 10 U.S.C. § 1 et seq. To allow civilian court review in Feres would have subjected military actions to two judicial systems; to disallow it here would subject prison actions to no judicial scrutiny whatever.

Leaving entirely aside the question of whether Congress could, if it wished, subject prisoners to the caprice of prison authorities or their fellow-prisoners without infringing constitutional rights, cf. Kent v. Dulles, 357 U.S. 116, 125-27, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958), we cannot impute such harsh motives to a liberal statute such as the Tort Claims Act.

Nor does this case fall within the exemption of 28 U.S.C. § 2680(h), barring claims “arising out of assault.” That exception applies only to assaults by government agents, not to assaults by third parties which the government negligently fails to prevent. Panella v. United States, 216 F.2d 622 (2d Cir. 1954).

Reversed.

On Rehearing en Banc

As in Winston v. United States, decided en banc this day, the question presented by this case is whether an in[*288]mate in a federal penitentiary may sue the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2674-2680 (1958). The case was originally heard by a panel consisting of Judges Clark, Hincks and Kaufman and the question was resolved, Judge Kaufman dissenting, in favor of the right of a prisoner to sue. The facts are stated in Judge Hincks’ opinion reported at 305 F.2d 286.

The order of the district court holding federal prisoners to be outside the scope of the Act is reversed on Judge Hincks’ opinion and on the opinion" of the court en banc in Winston v. United States.