FRANK A. KAUFMAN, District Judge.
This is a civil action for recovery of damages. Plaintiff alleges that on June 20, 1964, the five defendants, police officers of Baltimore City, unlawfully, willfully, intentionally and with malice beat and struck plaintiff and without justification invaded his home, damaged and destroyed his household furnishings, and arrested him; that he was then taken from his home and transported to the Southwestern District Police Station in Baltimore where he was confined to jail and charged with disorderly conduct, resisting arrest, and assaults on two of the defendants, Officers Russell and Cole, who were the complaining officers; and that on July 14, 1964, the Grand Jury for the Criminal Court of Baltimore dismissed presentments for indictments on those charges. Defendants have moved to dismiss the complaint.
The complaint sets forth four counts, each of which is factually grounded in the above alleged incidents. The first count states an action for damages to redress deprivation of constitutional rights. Jurisdiction as to this count is
invoked under 28 U.S.C. §§ 1331, 1343(3) and (4), and 42 U.S.C. § 1988. The other three counts state common law actions for assault and battery (second count), false arrest and imprisonment (third count), and malicious prosecution (fourth count). The doctrine of pendent jurisdiction is invoked with regard to these latter three counts.
I.
Plaintiff filed his complaint on July 14, 1966, more than one but less than three years after the alleged incident. Defendants attack the first and second counts as being barred by limitations. Plaintiff concedes that the second count, which sets forth a common law action for assault and battery, is barred by the one-year provision of the Maryland statute of limitations applicable to such an action. Defendants’ motion to dismiss that count is accordingly granted.
The first count states a federal statutory action for damages under 42 U.S.C. § 19831 for deprivation of civil rights. No federal statute provides any limitations period with regard to 42 U.S.C. § 1983.
Therefore: “The time for filing an action under the Federal Civil Rights Act is controlled by the applicable state statute of limitations.” West v. Board of Educ., 165 F.Supp. 382, 387 (D.Md.1958).
Statutory provisions applicable to the first count are found in Article 57, Section 1, of the Maryland Code.
The question in this case is which of the limitation periods'set forth in Section 1 of Article 57 should be applied to the first count.
Defendants
contend that the factual allegations of that count are grounded upon allegedly vicious assaults by the defendant officers; that for this reason the count is more nearly equivalent to an action of assault and battery than it is to any of the other actions referred to in Article 57; and that the count is barred by the one-year limitations provision applicable to assault and battery. Plaintiff, on the other hand, has contended that the three-year limitations period provided in Section 1 of Article 57 is applicable to the first count because that count is an action for violation of the twenty-third article of the Maryland Declaration of Rights. In addition, it can be argued that the count sounds more in illegal arrest, or false imprisonment, or malicious prosecution
than it does in assault and battery and that therefore the three-year limitations period of Section 1 of Article 57 is applicable.
The first count states a cause of action based upon factual allegations which sound in each of the common law torts mentioned above — that is, assault and battery, illegal arrest, false imprisonment and malicious prosecution.
There
fore, if there were no reference in Section 1 of Article 57 to Article 23 of the Maryland Declaration of Rights, it would be necessary either to. determine that the first count sounds more in one or certain of those common law torts than in the remaining torts and to apply to the entire first count the limitations applicable to the former tort or torts, or to split the first count into two parts and to hold that part pertaining to assault and battery barred by the one-year provision of Section 1 of Article 57 and the remainder, pertaining to illegal arrest, false imprisonment and malicious prosecution,
not barred because of the three-year provision of Section 1 of Article 57. In Smith v. Cremins, 308 F.2d 187, 98 A.L.R.2d 1154 (9th Cir. 1962), the Court, in a case involving a problem similar to the one encountered in this case, stated:
According to appellees’ analysis, the single cause of action under the Civil Rights Act alleged in the complaint includes three distinct causes of action under State law and calls for the application of two distinct State statutes of limitations * * *. Inconsistency and confusion would result if the single cause of action created by Congress were fragmented in accordance with analogies drawn to rights created by state law and the several differing periods of limitation applicable to each state-created right were applied to the single federal cause of action. [308 F.2d at 190],
The same problems would be present in this ease if a “splitting” approach were adopted.
However, the reference in Section 1 of Article 57 to Article 23 of the Declaration of Rights makes it unnecessary either to determine in what common law tort or torts count one sounds most, or to split that count into several analagous common law torts for the purpose of determining applicable limitations. In the Court’s opinion, the reference to Article 23 of the Declaration of Rights provides the most satisfactory solution to the limitations problem posed in this case.
Article 23 of the Maryland Declaration of Rights provides:
That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the Land.
The Maryland Court of Appeals has construed “Law of the Land,” as those words appear in Article 23, to be synonymous with “due process of law,” as that phrase is used in the Fourteenth Amendment. Oursler v. Tawes, 178 Md. 471, 483, 13 A.2d 763, 768 (1940); County Comm’rs of Anne Arundel County v. English, 182 Md. 514, 521, 35 A.2d 135, 139, 150 A.L.R. 842 (1943). The Maryland Court of Appeals has further held that in construing Article 23 “the decisions of the [United States] Supreme Court on the Fourteenth Amendment are ‘practically direct authorities.’” Goldsmith’v. Mead Johnson & Co., 176 Md. 682, 686-687, 7 A.2d 176, 178, 125 A.L.R. 1339 (1939) ; Home Utilities Co., Inc. v. Revere Copper & Brass, Inc., 209 Md. 610, 614, 122 A.2d 109, 110-111 (1956). See Niles, Maryland Constitutional Law 46-48 (1915). The United States Supreme Court has held that acts of the same general type as are charged against the defendants in this case are violative of federal due process. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); cf. Screws v. United States,
325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). It would therefore seem to follow that such acts, if proved, would also be violative of Article 23 of the Maryland Declaration of Rights.
There does not appear to be any Maryland statute, comparable to the federal enforcement provision set out in 42 U.S.C. § 1983, which implements private enforcement of the rights secured by Article 23 of the Declaration of Rights. Further, there appear to be no Maryland cases which have determined or even discussed whether the State constitutional rights secured by Article 23, or by any other provision of the Declaration of Rights, may be enforced in a civil action for damages in the absence of such a statute. This is a matter which touches the roots of constitutional theory and one which remains to this day unsettled as a general proposition of constitutional law.
The reference in Section 1 of Article 57 to Article 23 of the Declaration of Rights was originally included by virtue of an amendment enacted at a Special Session of the General Assembly of Maryland held at Frederick, Maryland, in the first year of the Civil War.
Two other enactments of that Special Session involved actions for violations of Article 23: one related to actions which might be maintained by executors and administrators
and the other to attach
ments against non-resident and absconding debtors.
All three 1861 enactments clearly contemplated the existence of actions for violation of Article 23. The preamble to chapter 77 of the 1861 amendments,
for example, refers to “actions for wrongs affecting the personal rights of the citizen,” and Section 2 of that chapter refers to “attachment on the amount of
damages
claimed in the declaration.” (Emphasis added). These 1861 amendments relating to executors and administrators, and to attachments, unlike the amendment to the statute of limitations, have been repealed.
However, before the repeal in 1929 of the 1861 amendment relating to executors and administrators, the Maryland Court of Appeals spoke in two cases about the amendment.
In Clark v. Carroll, 59 Md. 180 (1882), the Court held that that amendment was to be given a narrow construction, stating that:
The origin and object of the law is well understood. It was passed at a period of great excitement. The late civil war had just begun, and this Act was intended to meet a supposed exigency for greater security against the wrongs mentioned in the Act. Arbitrary arrests without judicial warrant, and imprisonment without such warrant, were so common at that period, it was thought necessary to preserve the remedy for such wrongs to the legal representatives of the party injured, and against the representatives and estate of the trespasser.
The Act, therefore, should be construed with especial reference to the mischiefs calling it into existence, and
which it was intended to redress. Being in derogation of the common law, and of the natural meaning of an already existing statute declaring the law in accordance with the common law, it ought not to be extended beyond the necessary and unavoidable meaning of the terms employed. [59 Md. at 183].
Forty years later, in White v. Safe Deposit
&
Trust Co., 140 Md. 593, 118 A. 77, 24 A.L.R. 482 (1922), the Court reversed the narrow approach taken in
Clark,
stating:
In
Clark
v.
Carroll,
59 Md. 180, reference was made to the fact that the Act of 1861, ch. 44, was passed at a period of great excitement, just after the beginning of the civil war, “and was intended to meet a supposed exigency for greater security against the wrongs mentioned in the act,” but in 1888, when the code of that year was adopted, the Legislature again declared that “the words ‘actions for injury done to the person’ hereinbefore used, shall not be held to embrace actions for” the causes therein set out. If it had been intended that the exception “injuries to the person” should have such a narrow construction given it, as is contended for in this case, such legislation would seem to have been unnecessary and useless, at least in 1888. [140 Md. at 603, 118 A. at 80].
The Court of Appeals of Maryland has apparently not commented in any case concerning the 1861 amendment to the Maryland statute of limitations. However, that amendment was re-adopted by the Maryland Legislature in 1888,
and has survived down to this day. Thus, in keeping with the approach taken by the Maryland Court of Appeals in the
White
case, it would seem that that amendment cannot be read in the narrow context of emergency Civil War legislation and must be taken to represent positive legislative policy with regard to the limitations applicable to cases which are concerned with violations of the rights secured by Article 23.
The Maryland statute of limitations does not, as do the enactments of some of the other states, provide a limitations period for actions “upon a liability created by statute.”
In Smith v. Cremins,
supra, plaintiff, while protesting the arrival of Soviet Deputy Premier Mikoyan at the Los Angeles airport, allegedly was seized by defendants, Los Angeles police officers, who took tracts from plaintiff, destroyed some of them, detained plaintiff for ten minutes without arresting him and then released him without returning the undestroyed literature. Defendants did not have a search or an arrest warrant. Plaintiff brought suit under 42 U.S.C. §' 1983. The District Court held the action was governed by the one-year period applicable to actions for assault, battery, false imprisonment and certain actions for damages for seizure of property, rather than by the three-year provision applicable to actions “upon a liability created by statute.” The Circuit Court of Appeals, in reversing, commented as follows (308 F.2d at 190):
Section 1983 of the Civil Rights Act clearly creates rights and imposes obligations different from any which would exist at common law in the absence of statute. A given state of facts may of course give rise to a cause of action in common-law tort as well as to a cause of action under Section 1983, but the elements of the two are not the same. The elements of an action under Section 1983 are (1) the denial under color of state law (2) of a right secured by the Constitution and laws of the United States. Neither of these elements would be required to make out a cause of action in common-law tort; both might be present without creating common-law tort liability. As Mr. Justice Harlan recently suggested, “a deprivation of a constitutional right is significantly different from and more serious than a violation of a state right and therefore deserves a different remedy even though the same act may constitute both a state tort . and the deprivation of a constitutional right.”
The search for state limitations to fill the gaps in federal enactments
such as 42 U.S.C. § 1983 is a search for analogies between federal and state law. Whenever federal courts attempt to apply state limitations to federal causes of action, what is sought are “practical solutions to a practical problem in the administration of justice.” McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 229, 78 S.Ct. 1201, 1206, 2 L.Ed.2d 1272 (1958) (Brennan, J., concurring). This Court, in searching for guides in Section 1 of Article 57, concludes that since the Maryland legislature has provided a three-year limitations period for actions, which may exist from time to time, for violation of Article 23 of the Maryland Declaration of Rights, and since the Maryland Court of Appeals has held that such rights are similar to the rights secured by the Fourteenth Amendment of the Federal Constitution, and since 42 U.S.C. § 1983 was enacted to provide a cause of action for violation of rights under that federal constitutional amendment, those same three-year Maryland limitations are applicable to actions brought under 42 U.S.C. § 1983.
II.
In view of the Court’s holding that the first count of the complaint is not barred by limitations, defendants’ contention that pendent jurisdiction does not attach to the third and fourth counts is without merit. See Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933).
III.
Defendants’ motion to dismiss also raises certain questions involving the immunity of police officers from liability in both common-law tort actions and in actions brought under the Federal Civil Rights Act.
Questions relating to immunities may be resolved by the Court in the context of a motion to dismiss. Johnson v. MacCoy, 278 F.2d 37 (9th Cir. 1960); Hartline v. Clary, 141 F.Supp. 151 (E.D.S.C.1956). For the purposes of this motion “our duty * * * is to consider whether in the light most favorable to the plaintiff, and with every in-tendment regarded in his favor, the complaint is sufficient to constitute a valid claim.” Tahir Erk v. Glen L. Martin Co., 116 F.2d 865, 869 (4th Cir. 1941). The accepted rule is that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).
“There can be no doubt * * * that Congress has the power to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.” Monroe v. Pape, supra, 365 U.S. at 171-172, 81 S.Ct. at 476, 5 L.Ed.2d 492. Nor can there be any doubt that Congress has in fact exercised that power with regard to actions such as the one stated in the first count. Police officers clearly cannot interpose the public nature of their employment between a federal cause of action alleging deprivation of civil rights and their potential accountability in damages therefor. Monroe v. Pape, supra; Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962); Smith v. Cremins, supra; see 3 Davis, Administrative Law § 26.06 (Supp.1965). Defendants’ contention that the first count fails to state a claim upon which relief may be granted is accordingly rejected.
The question of immunity of police officers from liability for the torts stated in counts three and four was also raised in the context of defendants’ motion to dismiss. Maryland law, which governs the substantive issues raised by counts three and four, is clear to the ef-
feet that a police officer may be held civilly liable for general damages in actions for assault and battery and for false imprisonment where his acts are illegal and beyond the scope of duty. Mason v. Wrightson, 205 Md. 481, 109 A.2d 128 (1954). Punitive damages may be additionally awarded if bad faith or malice is proved. Heinze v. Murphy, 180 Md. 423, 24 A.2d 917 (1942). Although those cases did not involve actions for false arrest or for malicious prosecution, their reasoning would appear to be equally applicable to those torts. Defendants’ motion to dismiss counts three and four of the complaint on the ground that those counts fail to state a claim upon which relief may be granted is therefore denied.
IV.
Defendants contend that there is an inconsistency between plaintiff’s assertion of jurisdiction under count one and the action for false imprisonment stated in the third count. The Court does not agree with that position. It is true that the jurisdiction of this Court under count one is invoked by alleging that the acts complained of were done “under color of law.” It is also true that a necessary element of false imprisonment is a “detention * * * without color of legal authority.” 11 Maryland Law Encyclopedia False Imprisonment § 1 (1961). Thus plaintiff may seem to be invoking jurisdiction under count one with the allegation that acts were done “under color of law” while at the same time seeking recovery under the third count with allegations that the same acts were
not
done “under color of law.” There is, however, no inconsistency. The Maryland Court of Appeals has referred to false imprisonment as a detention “without color of legal authority.” Dorsey v. Winters, 143 Md. 399, 410, 122 A. 257, 261 (1923). But it is apparent that what is meant by that phrase is “without legal justification.” See Safeway Stores, Inc. v. Barrack, 210 Md. 168, 173, 122 A.2d 457, 460 (1956). Otherwise, police officers would be immune from civil liability for false imprisonment owing to the fact that every action taken by them in performance of their official duties might be said to be an action taken “under color of legal authority,” a position which is not in accord with the Maryland decisions. In a case involving an action for false imprisonment against a police officer who acted not only with all the authority of his office, but even under the orders of a superior officer, the Maryland Court of Appeals held that when such an officer “goes beyoiid the scope of the law he may become liable civilly * * Mason v. Wrightson, supra, 205 Md. at 487, 109 A.2d at 131. In connection with an action of false imprisonment against a police officer, “without color of legal authority” simply means, that it must be shown that the defendant’s actions were beyond the scope of the law. And in accordance with the specialized jurisdictional usage of “under color of law” in federal actions against state officers, it is well settled that it is entirely consistent to aver that acts were done “under color of law,” in the sense that the officials were clothed with the authority of the state, and at the same time to seek to hold such officers liable for acts which were illegal under the law of the state. Ex parte Virginia, 100 U.S. 339, 346-347, 25 L.Ed. 676 (1880) ; Monroe v. Pape, supra, 365 U.S. at 171-172, 81 S.Ct. 473, 5 L.Ed.2d 492.
V.
False arrest and false imprisonment are alleged by the plaintiff in the third count. Defendants assert that plaintiff should be required to distinguish between these torts. Otherwise, argue defendants, the count is vague, ambiguous and improperly multifarious. Cited in support are 35 C.J.S. False Imprisonment § 2 (1960) and 11 Maryland Law Encyclopedia False Imprisonment § 1 (1961). Reference to these authorities reveals only that some courts in jurisdictions other than Maryland have drawn a distinction between the two torts “in that a false arrest must be committed
under assumption of legal authority whereas a false imprisonment may be committed without any pretense of legal authority.” 35 C.J.S. False Imprisonment § 2. It is not necessary, in the context of defendants’ motion to dismiss the complaint in this case, to determine whether such a distinction would be drawn by the Maryland courts or whether such a distinction, if drawn, would be material or relevant herein. The third count of the complaint would seem clearly to meet the test of Rule 8(e) (2) of the Federal Rules of Civil Procedure which provides that “a party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses.” See 2 Moore, Federal Practice [¶ 8.31 [2] (2d ed. 1965).
VI.
In order to maintain suit for malicious prosecution, plaintiff must show that the criminal proceeding instituted or abetted by the defendants terminated in plaintiff’s favor. Safeway Stores, Inc. v. Barrack, supra, 210 Md. at 173, 122 A.2d at 460. Defendants have argued that dismissal by a Grand Jury of a presentment for indictment does not constitute a “termination” of the criminal proceeding for purposes of establishing that element of the tort. The Maryland Court of Appeals, however, has indicated otherwise. In Banks v. Montgomery Ward & Co., Inc., 212 Md. 31, 38, 128 A.2d 600, 604 (1957), that Court stated:
Criminal proceedings are terminated in favor of the accused on discharge by a magistrate at a preliminary hearing,
by the failure of the grand jury to indict
or by an acquittal. [Emphasis supplied].
VII.
Defendants contend that the fourth count, which states a cause of action for malicious prosecution, contains no allegation that defendants instituted or continued an original criminal proceeding against the plaintiff or that there was an absence of probable cause for any proceedings. Plaintiff does not deny that these are necessary elements in the definition of the tort which must be established before recovery may be had under the fourth count. For the purposes of federal pleading, however, plaintiff would seem sufficiently to have alleged these elements in Paragraphs 7, 8 and 9 of the complaint, which in Paragraph 17 are incorporated by reference into the fourth count. See generally 2 Moore, Federal Practice [[ 8.13 (2d ed. 1965). In these paragraphs plaintiff alleges that he was charged with certain offenses as to which defendants Russell and Cole were the complaining officers; that presentments for indictments on these charges were dismissed by the Grand Jury; and that the acts of the officers were committed “unlawfully, willfully, intentionally, and with malice.” The quoted words would seem to constitute a sufficient allegation that the prosecution was without probable cause.
VIII.
Defendants contend that they cannot plead because each of the counts of the complaint alleges different acts of wrongdoing against different defendants at different times. Proof that any such act was committed by an individual defendant could well be sufficient to entitle plaintiff to judgment against that defendant.- Conversely, failure by plaintiff to prove any alleged act of wrongdoing against an individual defendant would result in a judgment in such defendant’s, favor. The complaint would seem clearly to meet the requirements of Rule 8(a)' of the Federal Rules of Civil Procedure-Defendants’ contention in this regard is-therefore rejected.
IX.
Defendants further urge that. plaintiff be required to insert an
ad damnum
clause in each of the three surviving counts. Also, counts three and four are attacked as claiming duplicate damages. Paragraph 21 of the complaint states that the action is brought to recover general damages in the amount of one hundred thousand dollars, special damages in the
sum of five thousand dollars and punitive damages of two hundred thousand dollars. “Where damages are sought a statement of the overall amount demanded suffices * * 2 Moore, Federal Practice H 8.18, at 1802 (2d ed. 1965). As to duplicate damages, it is probable that damages claimed under the several counts will overlap. Plaintiff may later, in the course of the litigation in this case, be required to apportion or particularize his claim for damages between counts, but not in an attack on his complaint as an improper pleading.
X.
For the reasons stated, defendants’ motion to dismiss is granted with regard to count 2 and is denied with regard to counts 1, 3 and 4. Counsel will prepare and submit an appropriate order giving effect to these rulings.