Dennis WOLFEL, Plaintiff-Appellee, v. Nick SANBORN, et al., Defendants-Appellants, 666 F.2d 1005

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.