MEMORANDUM AND ORDER
JOSEPH H. YOUNG, District Judge.
The complaint in this case contains six counts. The first two state a cause of action against defendant Allen under 42 U.S.C. § 1983. Plaintiff claims in Counts I and II that defendant Allen, while State’s Attorney for Baltimore City, improperly and maliciously procured his indictment, thus infringing his liberty interests guaranteed by the Fourteenth Amendment. In Counts III and IV, plaintiff makes essentially the same claim against defendant De-Kuyper. In Count V, plaintiff alleges that the two defendants conspired to violate his rights to liberty by procuring the indictment and violating the secrecy of the grand jury. In this count, plaintiff relies on 42 U.S.C. § 1985. In Count VI, plaintiff alleges a staté claim — malicious prosecution— against both defendants.
Defendants have moved to dismiss on the ground of the absolute immunity of prosecutors and grand jurors. The plaintiff and defendants have submitted factual materials outside the complaint; accordingly, the motions to dismiss will be considered as motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
In early 1974, the State’s Attorney’s Office of Baltimore City and the grand jury were investigating the illegal prescription and distribution of proscribed drugs by Baltimore area physicians. Plaintiff, a licensed physician with political ambitions, came under the investigation. On June 26, 1974, the grand jury indicted Dr. Pierpont for unlawfully prescribing and distributing dilaudid, a Schedule II controlled dangerous substance (see Md. Annot.Code, Art. 27, § 279), to Salvatore Buscemi. On July 1, 1974, defendant Allen, by Assistant State’s Attorney Joseph E. Murphy, Jr., submitted to the Criminal Court of Baltimore City a “Motion for Appropriate Relief” in which the State requested the court to determine whether the Criminal Court of Harford County had jurisdiction over the alleged offense. On July 2, 1974, plaintiff moved to dismiss the indictment and the motion was granted on the same day. Plaintiff was later indicted by the grand jury of Harford County. He was tried and acquitted before Judge Albert Close of the Circuit Court of Harford County on September 16, 1975.
THE IMMUNITY OF PROSECUTORS
The absolute immunity of prosecutors to suits under 42 U.S.C. § 1983 for actions taken within the scope of their duties has been established conclusively by the recent case of Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). In that case the court reviewed the reasons for the common law immunity of prosecutors and concluded that the same reasons support absolute immunity for suits under section 1983:
The common-law rule of immunity is thus well settled. We now must determine whether the same considerations of public policy that underlie the common-law rule likewise countenance absolute immunity under § 1983. We think they do.
If a prosecutor had only a qualified immunity, the threat of § 1983 suits would undermine performance of his duties no less than would the- threat of common-law suits for malicious prosecution. A prosecutor is duty bound to exercise his best judgment both in deciding which suits to bring and in conducting them in court. The public trust of the prosecutor’s office would suffer if he [1388] were constrained in making every decision by the consequences in terms of his own potential liability in a suit for damages. Such suits could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State’s advocate. Further, if the prosecutor could be made to answer in court each time such a person charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law. [Citations and footnote omitted.]
Before the Supreme Court had an opportunity to consider the question, the United States Court of Appeals for the Fourth Circuit reached the same result. Weathers v. Ebert, 505 F.2d 514 (4th Cir. 1974). See also dictum in McCray v. State of Maryland, 456 F.2d 1 (4th Cir. 1972).
THE IMMUNITY OF GRAND JURORS
The very same reasons and policy considerations which counsel absolute immunity for prosecutors require that protection for grand jurors as well. They too must be free to exercise their best judgment regarding sensitive legal and factual questions without fear of being held to account in damage actions. They also would have their attention and energy diverted from their official duties by lawsuits filed against them. The cases have been uniform in holding grand jurors absolutely immune from liability for acts committed within the scope of their duties. Martone v. McKeithen, 413 F.2d 1373, 1376 (5th Cir. 1969); Cawley v. Warren, 216 F.2d 74, 76 (7th Cir. 1954); Yaselli v. Goff, 12 F.2d 396, 403 (2nd Cir. 1926); Palmentere v. Campbell, 205 F.Supp. 261 (W.D.Mo.1962).
SCOPE OF AUTHORITY
The plaintiff has alleged that the immunities enunciated above offer no protection to the defendants because they acted outside of the scope of their authority or jurisdiction. Plaintiff claims that the act for which he was indicted, prescribing dilaudid for Buscemi, occurred in Harford County— outside of the jurisdiction of the Baltimore City State’s Attorney and the Baltimore City Grand Jury. He claims that the fact that Buscemi had the prescription filled in Baltimore City is irrelevant.
Article 27 § 288(c) of the Annotated Code of Maryland (1975 Cumulative Supplement) read as follows at the time of the indictment:
(c). It is unlawful for any practitioner to prescribe, administer, manufacture, distribute, dispense, or possess any controlled dangerous substance or controlled paraphernalia except in the course of his regular professional duties, and in conformance with both the provisions of this, subtitle and the standards of his particular profession .
The words “dispense,” “distribute” and “deliver” are defined in Article 27 § 277 of the Code.
(k) “Dispense” shall mean to deliver a controlled dangerous substance to the ultimate user . . . pursuant to the lawful order of a practitioner .
(l) “Distribute” shall mean to deliver other than by dispensing a controlled dangerous substance. .
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MEMORANDUM AND ORDER
JOSEPH H. YOUNG, District Judge.
The complaint in this case contains six counts. The first two state a cause of action against defendant Allen under 42 U.S.C. § 1983. Plaintiff claims in Counts I and II that defendant Allen, while State’s Attorney for Baltimore City, improperly and maliciously procured his indictment, thus infringing his liberty interests guaranteed by the Fourteenth Amendment. In Counts III and IV, plaintiff makes essentially the same claim against defendant De-Kuyper. In Count V, plaintiff alleges that the two defendants conspired to violate his rights to liberty by procuring the indictment and violating the secrecy of the grand jury. In this count, plaintiff relies on 42 U.S.C. § 1985. In Count VI, plaintiff alleges a staté claim — malicious prosecution— against both defendants.
Defendants have moved to dismiss on the ground of the absolute immunity of prosecutors and grand jurors. The plaintiff and defendants have submitted factual materials outside the complaint; accordingly, the motions to dismiss will be considered as motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
In early 1974, the State’s Attorney’s Office of Baltimore City and the grand jury were investigating the illegal prescription and distribution of proscribed drugs by Baltimore area physicians. Plaintiff, a licensed physician with political ambitions, came under the investigation. On June 26, 1974, the grand jury indicted Dr. Pierpont for unlawfully prescribing and distributing dilaudid, a Schedule II controlled dangerous substance (see Md. Annot.Code, Art. 27, § 279), to Salvatore Buscemi. On July 1, 1974, defendant Allen, by Assistant State’s Attorney Joseph E. Murphy, Jr., submitted to the Criminal Court of Baltimore City a “Motion for Appropriate Relief” in which the State requested the court to determine whether the Criminal Court of Harford County had jurisdiction over the alleged offense. On July 2, 1974, plaintiff moved to dismiss the indictment and the motion was granted on the same day. Plaintiff was later indicted by the grand jury of Harford County. He was tried and acquitted before Judge Albert Close of the Circuit Court of Harford County on September 16, 1975.
THE IMMUNITY OF PROSECUTORS
The absolute immunity of prosecutors to suits under 42 U.S.C. § 1983 for actions taken within the scope of their duties has been established conclusively by the recent case of Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). In that case the court reviewed the reasons for the common law immunity of prosecutors and concluded that the same reasons support absolute immunity for suits under section 1983:
The common-law rule of immunity is thus well settled. We now must determine whether the same considerations of public policy that underlie the common-law rule likewise countenance absolute immunity under § 1983. We think they do.
If a prosecutor had only a qualified immunity, the threat of § 1983 suits would undermine performance of his duties no less than would the- threat of common-law suits for malicious prosecution. A prosecutor is duty bound to exercise his best judgment both in deciding which suits to bring and in conducting them in court. The public trust of the prosecutor’s office would suffer if he [1388] were constrained in making every decision by the consequences in terms of his own potential liability in a suit for damages. Such suits could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State’s advocate. Further, if the prosecutor could be made to answer in court each time such a person charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law. [Citations and footnote omitted.]
Before the Supreme Court had an opportunity to consider the question, the United States Court of Appeals for the Fourth Circuit reached the same result. Weathers v. Ebert, 505 F.2d 514 (4th Cir. 1974). See also dictum in McCray v. State of Maryland, 456 F.2d 1 (4th Cir. 1972).
THE IMMUNITY OF GRAND JURORS
The very same reasons and policy considerations which counsel absolute immunity for prosecutors require that protection for grand jurors as well. They too must be free to exercise their best judgment regarding sensitive legal and factual questions without fear of being held to account in damage actions. They also would have their attention and energy diverted from their official duties by lawsuits filed against them. The cases have been uniform in holding grand jurors absolutely immune from liability for acts committed within the scope of their duties. Martone v. McKeithen, 413 F.2d 1373, 1376 (5th Cir. 1969); Cawley v. Warren, 216 F.2d 74, 76 (7th Cir. 1954); Yaselli v. Goff, 12 F.2d 396, 403 (2nd Cir. 1926); Palmentere v. Campbell, 205 F.Supp. 261 (W.D.Mo.1962).
SCOPE OF AUTHORITY
The plaintiff has alleged that the immunities enunciated above offer no protection to the defendants because they acted outside of the scope of their authority or jurisdiction. Plaintiff claims that the act for which he was indicted, prescribing dilaudid for Buscemi, occurred in Harford County— outside of the jurisdiction of the Baltimore City State’s Attorney and the Baltimore City Grand Jury. He claims that the fact that Buscemi had the prescription filled in Baltimore City is irrelevant.
Article 27 § 288(c) of the Annotated Code of Maryland (1975 Cumulative Supplement) read as follows at the time of the indictment:
(c). It is unlawful for any practitioner to prescribe, administer, manufacture, distribute, dispense, or possess any controlled dangerous substance or controlled paraphernalia except in the course of his regular professional duties, and in conformance with both the provisions of this, subtitle and the standards of his particular profession .
The words “dispense,” “distribute” and “deliver” are defined in Article 27 § 277 of the Code.
(k) “Dispense” shall mean to deliver a controlled dangerous substance to the ultimate user . . . pursuant to the lawful order of a practitioner .
(l) “Distribute” shall mean to deliver other than by dispensing a controlled dangerous substance. .
(i) “Deliver” or “delivery” shall mean the actual, constructive, or attempted transfer, exchange, or delivering of a controlled dangerous substance from one person to another with or without remuneration, whether or not there exists an agency relationship.
Under these provisions it is not readily apparent where (for jurisdictional purposes) the alleged crimes occurred. If prescription was the only crime, it could be argued quite forcefully that the crime was complete when the prescription was written in Har-ford County. However, distribution was also alleged in the indictment. It might, then, be argued that the distribution, requiring delivery, was complete only when the prescription was filled in Baltimore City. This conclusion might be even more [1389] attractive if the prosecution believed that the plaintiff conspired with the pharmacist to fill an illegal prescription.
The ambiguities relating to jurisdiction or scope of authority do not end in Article 27. Article 10 § 34 of the Annotated Code of Maryland indicates the scope of the State’s Attorney’s duties.
The State’s attorney for each county and the City of Baltimore shall, in such county or city, prosecute and defend, on the part of the State all cases in which the State may be interested.
In this section it is not entirely apparent whether the scope of the prosecutor’s authority extends only to crimes committed in the appropriate subdivision or to all “cases” in the subdivision regardless of where the crime was committed.
With the facts and the state law provisions thus exposed, it must now be determined whether or not either of the defendants exceeded the scope of his authority. The courts have been reluctant to strip a judicial officer of his immunity merely because he acted in excess of his jurisdiction or authority. The leading case is Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351-352, 20 L.Ed. 646 (1872).
“. . . [JJudges of courts of superi- or or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over the subject-matter, any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. . Thus, if a probate court, invested only with authority over wills and the settlement of estates of deceased persons, should proceed to try parties for public offences, jurisdiction over the subject of offences being entirely wanting in the court, and this being necessarily known to its judge, his commission would afford no protection to him in the exercise of the usurped authority. But if, on the other hand, a judge of a criminal court, invested with general criminal jurisdiction over offences committed within a certain district, should hold a particular act to be a public offence, which is not by the law made an offence, and proceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction, no personal liability to civil action for such acts would attach to the judge, although those .acts would be in excess.of his jurisdiction . . ..”
See also Fanale v. Sheehy, 385 F.2d 866 (2nd Cir. 1967). Bradley, of course, dealt with the scope of authority of a judge; but the cases have not been reluctant to apply the “excess of jurisdiction versus clear absence of jurisdiction” distinction.to prosecutors as well. In Bauers v. Heisel, 361 F.2d 581 (3rd Cir. 1966), the court held the prosecutor immune even though he had acted “in excess” of his authority by prosecuting a juvenile as an adult. See also Kauffman v. Moss, 420 F.2d 1270, 1273 (3d Cir. 1970); Clark v. Zimmerman, 394 F.Supp. 1166, 1175 (M.D.Pa.1975) for application of the rule to prosecutors.
The policy considerations which counsel the application of the doctrine here are strong. The immunity of prosecutors exists because they must exercise the same sort of discretion which judges do:
The immunity of . prosecuting attorneys . . . derives, not from their formal association with the judicial process, but from the fact that they exercise a discretion similar to that exercised by judges. Like judges, they require the insulation of absolute immunity to assure the courageous exercise of their discretionary duties.
McCray v. State of Maryland, 456 F.2d 1, 3 (4th Cir. 1972). The Supreme Court in Bradley v. Fisher, supra, recognized that a [1390] judicial officer’s most difficult decisions often concern the scope of his own authority.
Indeed, some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction . And the same principle of exemption from liability which obtains for errors committed in the ordinary prosecution of a suit . . . applies in cases of this kind and for the same reasons.
Recognizing that prosecutors must make courageous and unencumbered decisions about the scope of their authority in close cases, it follows that they must enjoy the same absolute immunity in such cases as they enjoy in cases squarely within their scope of authority.