Wolfel v. Sanborn

• Decision Date: 14 January 1982
• Docket Number: No. 80-3012,80-3012
• Citation: 666 F.2d 1005
• Parties: Dennis WOLFEL, Plaintiff-Appellee, v. Nick SANBORN, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1005

666 F.2d 1005

Dennis WOLFEL, Plaintiff-Appellee, v. Nick SANBORN, et al., Defendants-Appellants.

No. 80-3012.

United States Court of Appeals, Sixth Circuit.

Argued June 8, 1981.

Decided and Filed Nov. 18, 1981.

As Amended on Denial of Rehearing and Rehearing En Banc Jan. 14, 1982.

William J. Brown, Atty. Gen., Thomas V. Martin, Allen P. Adler, Asst. Attys. Gen., Columbus, Ohio, for defendants-appellants.

Michael E. Geltner, Ellen S. Shapiro, Geltner & Ritchie, Washington, D. C., for plaintiff-appellee.

Before EDWARDS, Chief Judge, WEICK, Circuit Judge, and PHILLIPS, Senior Circuit Judge.

PHILLIPS, Senior Circuit Judge.

This is an action by a parolee against two state parole officers for arresting and imprisoning him for twenty-seven days, at which time he was released, without holding a preliminary hearing to determine probable cause as required by Morrissey v. Brewer, 408 U.S. 471, 485, 92 S.Ct. 2593, 2602, 33 L.Ed.2d 484 (1972). The parolee, Dennis Wolfel, filed this action pursuant to 42 U.S.C. § 1983 against Ohio Adult Parole Authority Supervisor Nick Sanborn and Parole Officer John Barkeloo. Wolfel alleged that the two parole officers violated his Morrissey right to a preliminary hearing. For a recitation of the pertinent facts see the opinion of this court in the former appeal, Wolfel v. Sanborn, 555 F.2d 586 (6th Cir. 1977).

Following the first trial of Wolfel's claim, the jury awarded him $1,000. On appeal we reversed and remanded to the district court, holding that the two parole officers were entitled to have their defense of good faith submitted to a jury. The district judge conducted a second trial in accordance with the mandate of this court. A jury again awarded Wolfel $1,000 and the two parole officers again have appealed. We affirm.

Supervisor Sanborn and Officer Barkeloo contend: (1) The district court committed reversible error by instructing the jury that it was the parole officers' burden to prove that they acted in good faith; and (2) the district court should have granted their motion for a directed verdict on the ground that there was insufficient evidence from which the jury could find that they acted in other than subjective good faith.

In Wood v. Strickland, 420 U.S. 308, 318, 95 S.Ct. 992, 999, 43 L.Ed.2d 214 (1975), the Supreme Court wrote:

It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with a good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct. Scheuer v. Rhodes, 416 U.S. 232, 247-48 (94 S.Ct. 1683, 1692, 40 L.Ed.2d 90) (1974).

Justice Rhenquist joined the opinion of the Court in Gomez v. Toledo, 446 U.S. 635, 642, 100 S.Ct. 1920, 1924, 64 L.Ed.2d 572 (1980), reading it as leaving "open the issue of the burden of persuasion, as opposed to the burden of pleading, with respect to a defense of qualified immunity." We find no decision of the Supreme Court explicitly allocating the burden of proving the qualified immunity defense.

We conclude that the district court correctly instructed the jury that it was the burden of the two parole officers to prove their defense of qualified immunity.

The nature of the qualified immunity defense supports the allocation to defendants of the burden of proving that defense. In Gomez the Supreme Court allocated the burden of pleading the qualified immunity defense to defendants, reasoning:

Our conclusion as to the allocation of the burden of pleading is supported by the nature of the qualified immunity defense. As our decisions make clear, whether such immunity has been established depends on facts peculiarly within the knowledge and control of the defendant.... The existence of a subjective belief will frequently turn on factors which a plaintiff cannot reasonably be expected to know. Id. at 640-41, 100 S.Ct. at 1924.

This court's opinion in Kareem Abdul Jihaad v. O'Brien, 645 F.2d 556 (6th Cir. 1981), does not require a contrary result. In Jihaad, we held:

The defendants pled official immunity as an affirmative defense. It was not contested that O'Brien was acting within the scope of his discretionary authority in conducting the hearing. This was sufficient to establish a prima facie case of entitlement. The burden of proving that O'Brien was not entitled to official immunity was then on the plaintiff. The plaintiff failed to show that the defendant was not entitled to immunity under one of the tests set forth in Wood. See Douthit v. Jones, 619 F.2d 527, 534 (5th Cir. 1980). The defendant O'Brien was entitled to judgment under the doctrine of qualified official immunity. Id. at 564.

In Douthit v. Jones, 619 F.2d 527, 534 (5th Cir. 1980), the Fifth Circuit held:

When a plaintiff seeks damages under § 1983 for a discretionary action by an official such as a prison administrator, who must exercise an exceedingly broad range of discretion in performing his official duties, the official should be entitled to qualified immunity upon a showing that he acted within the scope of his discretionary authority. The burden would then be upon the plaintiff to show either that a subjective, bad faith intent to harm him motivated the official or that the official knew or should have known that his action infringed a clearly established constitutional right of the plaintiff. An official such as a police officer, whose discretion is limited, however, must demonstrate that he acted with a good faith belief that his actions were within his lawful authority, and that reasonable grounds existed for this belief based upon objective circumstances at the time he acted.

In the present case, the two parole officers, like a policeman, exercised limited discretion. Consequently, it was their burden to prove, as the district court instructed, that they acted in good faith.

Whether this court agrees with a jury's findings of fact is not determinative of the appeal. The standard of review is whether a reasonable jury on the evidence adduced by the plaintiff and drawing all inferences in plaintiff's favor, could reasonably have found that defendants acted in other than subjective good faith. Patzig v. O'Neil, 577 F.2d 841, 848 (3d Cir. 1978). Our review of the record convinces us that the jury reasonably could find that Supervisor Sanborn and Officer Barkeloo acted in other than subjective good faith.

The parole officers contend that they had no authority to order the preliminary hearing required by Morrissey. We find nothing in the record to show that this issue was raised in the district court, and we, therefore, should not pass upon it on this appeal. Bannert v. American Can Co., 525 F.2d 104, 111 (6th Cir. 1975), cert. denied, 426 U.S. 942, 96 S.Ct. 2662, 49 L.Ed.2d 394 (1976).

All other contentions of the parole officers have been considered and found to be without merit. The judgment of the district court is affirmed. No costs are taxed. The parties will bear their own costs in this case.

WEICK, Circuit Judge, dissenting:

I respectfully dissent. This is the second time that a jury has returned an identical $1,000 verdict against State of Ohio parole officers personally, namely, in the first trial and then again in the second trial for their alleged failure to conduct an on-site parole violation hearing which they had no authority under departmental rules of the Ohio Adult Parole Authority to conduct.

On March 5, 1973, appellee Wolfel was placed on parole. He had been serving a one to fifteen year sentence for burglary in the night season when he was paroled. Barkeloo had been assigned as his parole officer. He was also parole officer for about 60 parolees. Defendant Sanborn was Barkeloo's supervisor.

On May 27, 1973, Wolfel was arrested by Columbus, Ohio, police officers on a charge of intoxication. He was taken to the city jail where he posted bond and was released. His bond was forfeited when he failed to appear at his hearing in the Municipal Court of Franklin County, Ohio, scheduled for May 29, 1973.

During the evening of May 27, when Wolfel had been drinking at the bar in the Tip Top Club in Columbus, Ohio, he made several trips to the D & M Sub Shop, where he became involved in an argument with its owner Gladys Marie Kuhn. She called the city police and reported to them that Wolfel had threatened her with a firearm. The police arrived at the Tip Top Club and searched Wolfel and the bar but found no firearm. The police officers arrested Wolfel for intoxication.

On May 28, 1973, the Columbus police again arrested Wolfel on charges of trespassing and telephone harassment of Ms. Kuhn, who reported to the police that he threatened her life over the telephone. Wolfel told her that he was coming to get her and that her time was short. The charges were dropped some months later at the request of the city prosecutor.

On May 29, 1973, Ms. Kuhn telephoned parole officer Barkeloo and told him that Wolfel had threatened her with a firearm. He requested her to come to his office and make a statement to that effect. She came to his office that day and made a statement which was transcribed by a stenographer. She did not, however, sign the statement at that time because of the telephone threat she was afraid of what Wolfel would do to her. She did sign a complete statement at a later date on July 19, 1973.

Barkeloo discussed this matter with his supervisor Sanborn and they decided to interview Wolfel and ask him what happened. At their request, Wolfel came to their office and admitted he had been in Ms. Kuhn's shop, but denied he had a gun. Because of the seriousness of the charges, the parole officers decided to place him in custody and conduct a further investigation. Barkeloo then arrested him for parole violation on charges of having a firearm and forfeiting bond on the intoxication charge in the Franklin County, Ohio Municipal Court.

The validity of the arrest by the parole...