Dennis Wolfel v. Nick Sanborn
666 F.2d 1005
6th Cir.
1982
Check Treatment

*1 jobs trative requiring notice such expert

activities exist makes vocational .; however,

testimony unnecessary . . perform

when a can claimant limited

types [sedentary] activity, a vocational

expert jobs testify must be called to

requiring only the activities which the perform

claimant can exist in the nation- economy.

al .

Ferguson at 248.

III. Secretary

The case is remanded

development on the extent of limitation, any, environmental if

which Thomas would labor. If a limi- found,

tation is isit incumbent on the Sec-

retary show, through testimony of a expert,

vocational that there exists

national economy gainful substantial em-

ployment capable per- which Thomas is

forming light all the factors contribu-

ting disability. to her AND

REVERSED REMANDED. WOLFEL, Plaintiff-Appellee,

Dennis SANBORN, al.,

Nick et

Defendants-Appellants.

No. 80-3012.

United Appeals, States Court of Circuit.

Sixth

Argued June 1981.

Decided Filed Nov.

As Rehearing Amended on Denial of

Rehearing Banc En Jan. jobs (unskilled dust, fumes, sedentary exposure ries. These occu- often involve and oth- pations) may performed suspended particulates irritating after a short dem- er or intolera- days. respiratory persons onstration or within ble to afflicted with ail- P, Subpart App. 201.00(a). 20 C.F.R. Ma- ments. chine trades and bench work their nature *2 1006

Supervisor Officer (1) The court committed contend: district instructing jury that reversible error prove it was the officers’ burden faith; (2) the good that acted in granted their mo- district court should have ground on the tion for a directed verdict from there insufficient evidence that they acted in jury which the could find that subjective good other faith. than Gen., Brown, Thomas V. Atty. William J. 308, 318, Strickland, 420 In Wood v. U.S. Martin, Adler, Gen., Attys. Allen P. Asst. 992, 999, (1975), the 95 43 L.Ed.2d 214 S.Ct. Columbus, Ohio, defendants-appellants. for Supreme Court wrote: It is the of reasonable existence Geltner, Shapiro, Ellen Michael E. S. time and in for the belief formed at the Ritchie, C., Washington, & D. Geltner circumstances, coupled light of all the plaintiff-appellee. belief, affords a good-faith with a qualified immunity of executive basis EDWARDS, Judge, Before Chief in the course performed officers for acts WEICK, PHILLIPS, Judge, Circuit Rhodes, v. of official conduct. Scheuer Judge. Senior Circuit 232, 416 247-48 S.Ct. U.S. [94 PHILLIPS, (1974). Judge. Circuit 40 L.Ed.2d Senior 90] Rhenquist joined opinion Justice by parolee against This is an action two Toledo, 446 Court in Gomez v. U.S. arresting state officers for and im (1980), 100 64 L.Ed.2d 572 S.Ct. prisoning twenty-seven days, him for reading leaving “open it as the issue released, which time he was without hold persuasion, opposed to the burden of ing preliminary hearing to determine pleading, respect burden of to a de- required by Morrissey cause as v. qualified immunity.” find no fense We Brewer, 92 U.S. S.Ct. Supreme explicitly decision of the Court parolee, 33 L.Ed.2d 484 quali- allocating proving the burden of pursuant Dennis filed this action immunity fied defense. Ohio Adult Parole U.S.C. § Authority Supervisor Nick and Pa We conclude that the district court alleged role John Officer Barkeloo. Wolfel correctly instructed the that it was the the two officers violated his prove burden of the two officers to Morrissey right preliminary hearing. to a qualified immunity. their defense of pertinent For a recitation of the facts see immunity de- The nature of the opinion appeal, of this court in the former supports fense the allocation to defendants Sanborn, (6th lfel F.2d Wo proving of the burden of that defense. 1977). Cir. Supreme Court allocated the Gomez claim,

Following qualified immunity pleading the first trial of Wolfel’s burden of $1,000. defendants, reasoning: appeal awarded him defense to we reversed and remanded to the district the allocation of the Our conclusion as to court, holding the two pleading supported by burden of good were entitled to have their defense of qualified immunity nature of the defense. faith jury. clear, submitted to a The district As our decisions make whether judge conducted a trial second accord- de- immunity has been established ance with the mandate of this court. A pends peculiarly on facts within the $1,000 jury again awarded Wolfel knowledge and control of the defend- subjective two appealed. have existence of a ant. . .. The frequently We turn on factors affirm. belief will prove, instructed, reasonably as the district court which a cannot expected to know. Id. at 640 — S.Ct. at 1924. agrees Whether this court opinion This court’s in Kareem Abdul Ji jury’s findings of fact is not determinative O’Brien, (6th

haad v. 645 F.2d 556 Cir. appeal. The standard of review is 1981), contrary require does not result. *3 whether a on the reasonable evidence Jihaad, In we held: by plaintiff drawing adduced all immunity The official pled defendants favor, plaintiff’s inferences in could reason as an affirmative defense. It was not ably have found that defendants acted in acting contested that within O’Brien subjective good Patzig other than faith. scope discretionary of in authority O’Neil, 841, (3d 1978). 577 F.2d Cir. conducting This was suffi- Our review of the record convinces us that prima cient to establish facie case a jury reasonably Supervi could find that proving The burden entitlement. sor Officer acted in O’Brien was not entitled to official immu- subjective good other than nity plaintiff. plain- was then on the The parole officers contend that tiff failed to show authority prelimi had no to order the immunity was not entitled to under one nary hearing required by Morrissey. We of the tests set forth in Wood. See nothing find in the record to show that this Jones, 527, (5th Douthit v. 619 F.2d court, issue was raised in the district 1980). Cir. The defendant O’Brien was we, therefore, pass upon should not it on judgment entitled to under the doctrine Co., appeal. Bannert v. American Can official immunity. Id. 104, (6th 1975), 525 F.2d Cir. cert. de Jones, (5th In Douthit v. 619 F.2d nied, 49 L.Ed.2d 1980), Cir. the Fifth Circuit held: plaintiff damages When a seeks under All parole other contentions of the offi- a discretionary by action an cers have been considered and found to be administrator, prison official such as a without merit. The of the dis- exceedingly must exercise an broad trict court is affirmed. No costs are taxed. range performing of discretion in his offi- parties own in this will bear their costs duties, cial the official should be entitled case. qualified immunity upon showing a scope that he acted within the of his WEICK, Judge, dissenting: Circuit discretionary authority. The burden respectfully I dissent. This is the second upon would then be to show time that a has returned an identical subjective, either that a bad faith intent $1,000 parole verdict State of Ohio to harm him motivated the official or personally, namely, in first trial the official knew or should have and then in the second trial for their known infringed clearly that his action alleged failure to conduct an on-site right established constitutional hearing plaintiff. violation had no author- police An official such as a officer, limited, ity departmental whose rules of the Ohio discretion how- ever, must demonstrate that he Adult Parole to conduct. faith belief that his actions 5, 1973, appellee On March Wolfel was were within his authority, lawful serving been placed He had that reasonable existed for this year burglary sentence for in one to fifteen upon objective belief based circumstances paroled. night season when he was at the time he acted. assigned Barkeloo had been as his case, the two offi- officer for officer. He was also

cers, policeman, like a parolees. exercised limited dis- Defendant about 60 Consequently, supervisor. cretion. it was burden Barkeloo’s forfeiting having a firearm and charges of arrested May Wolfel was charge the intoxication bond on Columbus, Ohio, charge police officers on Municipal County, Ohio Court. Franklin city He was taken of intoxication. and was released. jail posted where he bond validity of the arrest he failed to when His bond was forfeited as it was was not in issue officer Barkeloo Municipal in the at his appear the District Court valid both found Ohio, County, scheduled Court of Franklin 593). (555 F.2d this court. May whether in this case is question The real May when Wol- During evening officers acted unreasona- these two Tip drinking fel had been at the bar deprived Wolfel of a constitutional bly and Ohio, Columbus, sever- Top statutory right he made to an on-site Club or preliminary inquiry where he to determine trips Shop, al to the D M which is & Sub to believe whether there is cause argument with its became involved in an *4 occurred. parole that a violation Gladys Kuhn. called the owner Marie She city police reported to them that Wolfel and proof was offered who No The had threatened her with a firearm. in the trial in the district court participated police Tip Top arrived at the Club and lawyer wit- as his own and cross-examined found no searched Wolfel and the bar but nesses, parole these two officers that arrested Wol- police firearm. The officers on-site hear- any authority to schedule an fel for intoxication. offered the defend- ing. The evidence au- they possessed that no such ants was police May On the Columbus only by the thority as this could be done tres- charges arrested Wolfel on department un- review section of the case passing telephone and harassment of Ms. procedure then in effect. At that der the Kuhn, that he reported police to the time, officer would submit a parole the telephone. her life over the threatened review section within 10 report to the case get coming told her that he was to Wolfel re- working days of the arrest. The case The her and that her time was short. section would then determine whether view charges dropped were some months later at hearing and if so on-site should be held an request city prosecutor. the of the determined, assign regional would either a telephoned Kuhn May hearing. supervisor or a unit to conduct the him that parole officer Barkeloo and told give of the hearing The officer would notice her a firearm. Wolfel had threatened with rights at hearing parolee, explain his requested He her to come to his office and give opportunity to hearing and him the make a statement to that effect. came She hearing if he desired. If the waive the day to his office that and made a statement waived, hearing required not it was to stenographer. which was transcribed following the two weeks and be held within not, however, sign did the statement at She hearing days to hearing, the officer had five telephone because of the threat time report. file his written was afraid of what would do to she Wolfel hearing been held An on-site would have sign complete did statement at her. She 27, 1973, if it had been scheduled- on June July a later date on hearing determined and if the officer had to believe that was not cause there this matter with his Barkeloo discussed he parole, his parolee had not violated in- supervisor they and decided to after have been released sometime happened. Wolfel and ask him terview what July request, At their Wolfel came to their office and admitted he had been in Ms. Kuhn’s however, was sched- on-site No shop, gun. but denied he had a Because of case. uled on the initial arrest charges, parole the seriousness of the to department then the of the It was place custody to him officers decided on a criminal consider a bond forfeiture investigation. Barkeloo facie evidence of a charge prima conduct a further as need would eliminate the then arrested him for violation on violation which custody Wolfel be released from re- regarded It was an on-site This was twelve guilt. In order to be certain stored to a confession days proceeding properly, working were de- after his arrest. On fol- requested lowing Monday, their su- officers which was the thirteenth fendant arrest, this periors day to obtain clarification of his concurred in after departments’ legal it from the office the recommendation and forwarded on advisor, Attorney General of Ohio. day to the case review section same by the superiors were advised office on June instructed the that their General Ohio they did to release Wolfel which permissible. day. on same were fact interesting It is that Wolfel was rearrest- cautiously handling in their proceeding so gun ed for threats with a made additional proof is not of the case separate, people May other in a pretext. using or were as a maliciously at an place. different Ms. Kuhn testified any proof lack of This suffers from the threatened on-site that Wolfel had of the two part of malice on gun. employees her one of her in this case. At first officer defendants separate witness to the incident The other trial, specifically found court the district finding was made of also testified mal- was no evidence of actual “that there had violated his probable cause that Wolfel responsible for They were in no wise ice.” having making parole by a firearm and Authority, policies Adult officer, however, threats. obey carry but it was their notify failed to Wolfel as *5 department. of policies out the the a of and as result the conclusion the against is not an action the present suit error, was released that technical Wolfel of Attorney or or the General the Authority, custody. from Ohio, of from liabili- which is immune State impeach to The defendants endeavored Brewer, Hence, Morrissey the case of v. ty. by offering evi- credibility of Wolfel the burglary rape, for his convictions dence of (1972) pa- the inapposite L.Ed.2d is kidnapping which evidence and Morrissey was a rolee has been released. under Rule 609 Fed. admissible claimed was corpus parolee habeas case in which the was to ad- The district court declined R.Evid. hearing. any not released and was denied mitigate to even mit such evidence investigation, the During the course of trauma and that he suffered his contention visited Wolfel several times the Barkeloo day during his 27 con- distress emotional he jail to ascertain whether remembered not ruling is understanda- This finement. helpful. Wolfel anything might be involving of in case revocation ble permitted told Barkeloo that if he were to of a convicted felon. examination, take a he would be polygraph act- parole officers The evidence that the to then sched- able clear himself. Barkeloo upon policy of the Adult ed the uled an examination to be adminis- They prof- Authority was uncontroverted. by patrol. highway tered the State of Ohio which em- jury fered an instruction given, the before examination good faith defense elements of bodied the changed mind did not to take his desire declined trial court 1983 which the it. failure to that the give. to It is submitted told Kuhn that he un- prejudi- instruction was give requested the anyone story to her able find to corroborate court instructed The district also cial error. statement, sign if she did her not upon proof was the of the burden Wolfel it would not sufficient declare good to show the defendants his parole. in violation of She stated that for a denied motions The district court office on June she would come to his granted verdict. It a motion for directed she not to his office When did come notwithstanding the verdict on pa- judgment his on June Barkeloo dictated recommending ground plaintiff timely had not report the role violation ously then of rape kidnapping, filed a memorandum and vacated the convicted judgment duty disobey policy order denied the motion for the established of argued Authority. n. o. v. that the district It court erred in denial of the motions for a its years, parole In recent boards have been and for n. directed verdict o. releasing severely condemned for on violent committed although felons have atro- At first trial the district cious while In the crimes on no court found that there was evidence parolee deprive even part on malice shown time in- a reasonable officers, it ruled that as a matter of vestigate allegedly crimes committed law defense was their affirmative insuffi- parole, namely, threatening on him while jury. cient for submission to the This her employee the life of woman and a directed verdict in favor effect was person jumping another with a firearm and plaintiff good on defendants’ faith de- by po- bail after arrest for intoxication appeal fense. to this court we stated: all, lice officers. he was released after We conclude that defendants were enti- days. lapse The district tled their to have faith defense sub- however, judge, days of allowed 10 this for mitted to the and the district court hearing. the on-site The trouble was the finding erred in that the defendants re- completed parole officers had not their in- liance on unwritten of the Pa- vestigation in days. He was rearrested Authority role was unreasonable. separate charges involving on per- another trial, At the second it was established given son and was an on-site At beyond any doubt the of the Parole the hearing officer found that question at the time in and it had had violated his mak- been sanctioned General ing threats firearm. Ms. Kuhn testi- longer Ohio any so that there no existed parolee’s fied at that as to the issue of fact this issue. Since the gun. threats on her life with a It could be nothing to do the estab- argued prior that because of his conviction it Authority, lishment of rape, elWolf did not have much respect was clearly obey it. The for and for kidnapping women that he had *6 judg- motions for directed and for verdict propensity violent At crime. the on- notwithstanding ment verdict raise this neglected site officer issue and it is our determine it. advise Wolfel of his which vio- lated the law and Wolfel was ordered re- I. released, leased. He was also as ordered It is submitted that is without stated, previously by the case review section precedent. Parole employed by officers the on recommendation officers Adult Parole Authority of Ohio have in this signed when Kuhn had not the state- case been held personally damages liable ment on June also 1973. It was estab- obeying a policy adopted by the Author- lished by testimony uncontroverted that the ity approved lawful authority defendant officers had no General of Ohio. was not to whatsoever to conduct an on-site hold on-site revocation of hearings individually and therefore cannot be held parolee where jumped had bail for an liable for failure or refusal of the Au- offense committed while on thority to conduct one. why It is not understandable my In opinion, offi chose to sue the individually cers at least be entitled to rather than if he Rhodes, real- immunity. Scheuer v. 416 U.S. ly believed that such a Author- (1974); 94 40 S.Ct. L.Ed.2d 90 Cf. ity deprived him of rights. his constitutional Strickland, Wood v. 420 U.S. 95 S.Ct. It hardly can parole 992, claimed that these (1975); Butz L.Ed.2d v. Econo parolee owed the pa- mou, was on S.Ct. L.Ed.2d role for burglary also been previ- overwhelming proof in this case es-

tablished faith of the offi-

cers and the reasonableness of their con- laymen, they possibly

duct. As could not any

have had reason to believe that employer adopted Adult Pa-

role Authority approved by highest

legal officer of the State violated the con- rights plaintiff.

stitutional holding, view of this it is not necessary issues, important determine other name-

ly, the burden of proof which the Supreme Toledo,

Court left undecided Gomez v. 1923-24, U.S. (1980),

64 L.Ed.2d 572 admissability and the

of impeaching evidence of Wolfel’s convic- rape

tions for burglary, kidnapping. support

Additional the direction

of a may verdict the court be urged in although

this court not asserted in the dis-

trict court. of the district court should

be reversed and the cause remanded with

instructions to complaint. dismiss the INDUSTRIES,

BAY-WOOD INC., Petitioner, *7 Roumell, George Jr., T. Moore, Stanley C. III, Roumell, Riley C., & Detroit, Mich., P. NATIONAL RELATIONS petitioner. filed briefs for LABOR BOARD, Respondent. Barbee, Higgs, Higgs, Higgs & E. Milton No. 80-1433. Mich., C., ar- Bay City, filed briefs and P. Appeals, Court of

United States , petitioner. gued for Circuit. Sixth Argued Oct. Moore, Deputy Associate Gen. Elliott Decided Dec. Counsel, Hipp, Deputy Asst. Kenneth B. Counsel, Fleischer, Atty., A.

Gen. David briefs; Marshall, Washington David filed D.C., argued respondent.