MEMORANDUM OF OPINION
Plаintiff, a citizen of Michigan, filed this action on August 16, 1972 and named as defendants two Mississippi law enforcement officers and their sureties. Jurisdiction is alleged only under 42 U.S.C.A. § 1983 and 28 U.S.C.A. § 1343.
Thе individual defendants are Robert Pendleton Taylor, the sheriff or former sheriff of Lowndes County, Mississippi, and R. W. McDaniel, a constable. United States Fidelity and Guaranty (U. S. F. & G.) issued a surety bond for Sheriff Taylor in the sum of 20,000 dollars, and Hartford Accident and Indemnity issued a bond for Constable McDaniel in the amount of 1,000 dollars. Plaintiff demands judgment against the individual defendants in the sum of 150,000 dollars, and against the corporate sureties in an amount equal to the face value of the bonds.
The action is presently before the court upon a motion to dismiss filed by the defendants Taylor and U. S. F. & G. The motion was previously overruled in all aspects. However, this court subsequently decided tо reconsider a single jurisdictional issue: is this cause barred by the applicable statute of limitations? Additional briefs have been submitted by the parties, and the question is ready for resolution. The allegations, of course, will be taken as true.
Deward H. Ballard, the plaintiff, was arrested by Constable McDaniel on August 19, 1966. Apparently thе charges, which are unspecified, were never prosecuted. Ballard alleges that he was severely beaten at the time of arrest. Injured and bleеding, he was transported to and incarcerated in the Lowndes *411 County Jail, operated under the direction of Sheriff Taylor and his agents. The plaintiff alleges that he repeatedly implored the jailer to summon a physician to treat his wounds; however, he did not receive medical attention until 8:00 A.M. the following day, almоst ten hours after initial incarceration. This action for damages was filed three days before the expiration of six calendar years after the allеged beating and incarceration. To ascertain if this cause is barred by a period of limitations, the court must identify the applicable statute.
The allеged jurisdictional basis, 42 U.S.C.A. § 1983, does not itself contain a period of limitations for the initiation of suit. Moreover, no other federal statute provides any limitations рeriod applicable to § 1983. Antieu, Federal Civil Rights Acts § 85.
Where a federal act does not contain a statute of limitations, the courts must rely upon the limitatiоns period prescribed for analogous actions by the state in which the cause of action arose; in this case, Mississippi. The applicable period of limitations is that which the state would have enforced had an action seeking similar relief been brought in state court. Sewell v. Grand Lodge of Int. Ass’n of Mach. & Aero. Wrks.,
This process results, of course, in an absorption or assimilation of state law into the federal code. Consequently, the ability of litigants to enforce federally created rights or evade federally created liabilities may vary from state to state because of differing limitation periods. Nonetheless, even where “a federal stаtute creates a wholly federal right but specifies no particular statute of limitations to govern actions under the right, the general rule is to apply the stаte statute of limitations for analogous types of actions (citations omitted). A special federal statute of limitations is created, as a matter оf federal common law, only when the need for uniformity is particularly great or the nature of the federal right demands a particular sort of statute of limitatiоns.” (citations omitted). Chevron Oil v. Huson,
Apparently a Mississippi statute of limitations has been applied to § 1983 in only one reported case. Franklin v. City of Marks,
In the case
sub judice
the defendants urge that there is a clear analogy in state law. They contend that the allegations are essentially nothing more than a rеcital of certain intentional torts, specifically: assault and battery, malicious arrest, false imprisonment, and possibly the intentional infliction of mental аnd physical distress by refusing to summon a physician. The cause of action, they argue, is barred by § 732 Miss.Code Ann. (1956), which provides: “[a] 11 actions for assault, assault and battery,
*412
maiming, false imprisonment, malicious arrest, or menace, and all actions for slanderous words concerning the person or title, and for libels, shall be commenced within one year next after such cause of action accrued, and not after.” The Mississippi Supreme Court has interpreted this statute as “provid [ing] аn inclusive listing of the recognized intentional torts . . . ” Dennis v. Travelers Insurance Co.,
The plaintiff, naturally, has adopted a different view. He interprets the essential nature of the allegations in terms inherent to all § 1983 actions — the denial under color of state law of a right or rights secured by the constitution and laws of the United States —and argues that the general limitations period of six years is applicable because there is no analogous cause or right of action created by state law. Section 722, the catch-all statute applied in Franklin, supra, provides: “[a] 11 actions for which no other period of limitations is prescribed shall be commenced within six years next after such cause of action accrued, and not after.”
We must note, after examining the “essential nature” of the allеgations, what this action is not. It is not, for example, an ordinary suit upon the bond of a public officer guilty of assault — a form of action which the Mississippi Supreme Court has interpreted, however wisely, as the breach of a contractual obligation arising from the commission of a tort — which is governed by the six year pеriod prescribed in § 732,
supra.
See e. g., State, for the use of Smith v. Smith et al.,
The essentiаl nature of the allegations lie wholly within traditional tort theory. The court, therefore, concludes that a state court of Mississippi would have appliеd the one year statute of limitations.
It should be noted, moreover, that the plaintiff could have initiated this action in state court, or in this court under ordinary diversity jurisdiсtion. It can be presumed that he did not do so because the action would have been clearly barred by the one year limitations period. By simply designаting § 1983 as the jurisdictional basis, he cannot automatically alter the fundamental character of the action.
An appropriate order will be entered finally dismissing this cause.