In evaluating the doctor's conduct we may take cognizance of the extraordinary degree of helplessness of the plaintiff. Malice for constitutional purposes includes "callous" or "wanton neglect", and ".

'reckless indifference to the rights of the individual citizen'" Whether conduct is wanton or reckless depends in part on the context in which it occurs, and this includes the inability of the victim of protect himself.

574 F.2d at 12. The court reversed the directed verdict granted the doctor as to plaintiff's claim against him for sterilizing her, indicating that reasonable men could come to the conclusion that the doctor did not act in good faith.

The court described the analysis which must be applied by a district court in determining whether a particular official is entitled to rely upon good faith immunity. First, First, the district court "should consult the common law to determine whether or not the particular official sued has traditionally been accorded any sort of immunity in actions comparable to the cause of action asserted under § 1983." 574 F.2d at 13. However, if the official has not traditionally been accorded immunity, the court may still consider whether the official should be granted a qualified immunity "to avoid discouraging effective official action by public officers charged with a considerable range of responsibility and discretion." 574 F.2d at 14. The

court stated:

[I]n each instance the immunization
available depends upon the "scope
of discretion and responsibilities
of the office and all the circum-
stances as they reasonably appeared
at the time of the action" for which
relief is sought. . .. In this
context, the qualified immunity
rests in part upon the idea that
public policy requires that cer-
tain officials be able to perform
their discretionary duties without
having to fear that good faith
errors in judgment may ultimately

result in damages liability.

574 F.2d at 14. The court noted that neither the Supreme Court nor the United States Court of Appeals for the First Circuit had ever held that state social workers were entitled to assert a qualified immunity. Although the Second Circuit had held that supervisory municipal welfare employees were entitled to the immunity, Duchesne v. Sugarman, 566 F.2d 817 (2d Cir. 1977), the court noted that the opinion in that case suffered from the lack of analysis the court was prescribing. Therefore, the court determined that the social workers should be given an opportunity to develop the relevant factual data and legal principles so that the court could make a proper decision. 574 F.2d at 14 n. 18.

The court held that a private citizen would not be entitled to the qualified immunity even when he was shown to have acted in concert with state officials:

574 F.2d at 15-16. Therefore, in the First Circuit it would appear that private citizens do not have a good faith defense but are liable for compensatory damages upon a showing that they subjected the plaintiff to a violation of his constitutional rights.

In Duchesne v. Sugarman, 566 F.2d 817 (2d Cir. 1977), the court reversed the dismissal entered for the defendants in an action against municipal welfare employees and two private child caring institutions for their alleged taking and retaining custody of

plaintiff's two minor children without her consent in Violation of the due process clause of the Fourteenth Amendment. The court commented that if the jury found that defendants played a significant role in causing the situation which resulted in detention of plaintiff's children, it was then required to determine whether defendants were entitled to the qualified immunity/good faith defense which under Wood, supra, contained both subjective and objective components. 566 F.2d at 832.

b. Immunity of Probation and Parole Officers

Burkes v. Callion, 433 F.2d 318 (9th Cir. 1970), cert. denied, 403 U.S. 908, 91 S.Ct. 2217, 27 L. Ed. 2d 685 (1971) held that the defendant probation officer was immune from liability in an action under 42 U.S.C. § 1983 (2) and that the district court had properly dismissed the complaint. The court stated: "A probation officer preparing and submitting a probation report in a criminal case is performing a 'quasijudicial' function and is entitled to a similar, if not the same, immunity that is accorded to judges for acts done by them in the exercise of their judicial functions. 433 F.2d at 319. Similarly, Timson v. Wright, 532 F.2d 552 (6th Cir. 1976) held that the district court had properly dismissed the complaint against the defendant chief probation officer. The court in that case did not reveal whether the defendant's immunity was absolute judicial immunity or quasi-judicial immunity.

The district court in Douglas v. Muncy, 570 F.2d 499 (4th Cir. 1978) properly dismissed plaintiff's complaint against the members of the parole board and plaintiff's parole officer since these defendants were immune from liability for damages.

In Franklin v. Shields, 569 F.2d 784 (4th Cir. 1977), cert. denied, 98 S.Ct. 1659 (1978), the court of appeals upheld the district court's grant of declaratory relief but denial of money damages against the defendant members of the parole board who allegedly denied plaintiffs due process in their parole release proceedings. The district court found that the defendants had acted in good faith and therefore were immune from damage suits. Similarly, in Johnson v. Wells, 566 F.2d 1016, 1018 (5th Cir. 1978), the court noted that parole officials are immune from actions for damages under section 1983.

The courts rejected the qualified "good faith" immunity and found that the defendants were entitled to absolute immunity in Pate v. Alabama Board of Pardons and Parole, 409 F. Supp. 478 (M.D. Ala. 1976) and Bricker v. Michigan Parole Board, 405 F.Supp. 1340 (E. D. Mich. 1975).

Inmates of Nebraska Penal and Correctional Complex v. Greenholtz, 567 F.2d 1381 (8th Cir. 1977) declined to decide whether members of the parole board enjoy absolute or only qualified immunity since the district court's finding of no evidence of bad faith was supported by the record. However, the court approved the district court's award of $125.06 to plaintiffs for legal expenses under the Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, upon finding that, since the board's policy would have been held unconstitutional, the plaintiffs were considered prevailing parties for the purpose of awarding costs. 567 F.2d at 1384.

Thompson v. Burke, 556 F.2d 231 (3d Cir. 1977) held that probation officers and parole board members are entitled to quasi-judicial immunity when engaged in "adjudicatory" duties. 556 F.2d at 236. In that case the district court had directed a verdict for the defendant, a parole board member, upon its finding that plaintiff was not denied due process in his parole revocation proceedings. The court of appeals found that the district court had erred since it was obvious from the record that the procedures required by Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L. Ed. 2d 484 (1972) had not been complied with. Since remand was necessary, the court discussed defendant's claim of immunity. The court found that if the functions of the defendant, which were challenged, were included in his quasi-judicial duties in affecting the length of sentences, he would be entitled to quasi-judicial immunity. The court seemed to imply that this immunity would be absolute. However, if the defendant's failure to grant plaintiff an adequate due process hearing was not an adjudicatory function, he would then be entitled to the good faith immunity available under Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L. Ed. 2d 214 (1975); and Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974). However, he would have the burden of proving that he acted reasonably, in good faith, and without malice. 556 F.2d at 231.

Wolfel v. Sanborn, 555 F.2d 583, 590-91 (6th Cir. 1977) held that the defendant parole officers were entitled to the good faith immunity defined in Wood v. Strickland, supra. However, the district court should have submitted the question of the defendants' subjective good faith to the jury. Further, the district court's finding that the defendants' alleged reliance upon the unwritten policy of the parole authority regarding bond forfeiture was unreasonable as a matter of law was not supported by the record. 555 F.2d at 592-93.

Kelsey v. State of Minnesota, 565 F.2d 503

stated:

This Court has not yet considered
whether a parole board member has
quasijudicial immunity and is
therefore immune from suits, or
whether a parole board member has
qualified immunity and is liable
for damages only if he did not
act in good faith. Because of
our decision in this case, we
need not decide that issue.

565 F.2d at 507 n. 4.

Keeton v. Procunier, 468 F.2d 810 (9th Cir. 1972), cert. denied, 411 U.S. 987, 93 S. Ct. 2276, 36 L.Ed.2d 965 (1973) noted that adult authority members who were charged with denying plaintiff due process at his parole rescission hearing were immune from liability and dismissal of the complaint as to plaintiff's claim for damages against them was proper.

Joyce v. Gilligan, 383 F. Supp. 1028 (N.D. Ohio 1974), aff'd without opinion, 510 F.2d 973 (6th Cir. 1975) granted the defendant parole officer's motion to dismiss under Rule 12(b) (6), using the good faith immunity test.

The Third Circuit noted in Thompson v. Burke, 556 F.2d 231, 232 (3d Cir. 1977), and Madden v. New Jersey State Parole Board, 438 F.2d 1189, 1190 (3d Cir. 1971) that a parole board is not a 'person" for purposes of liability under section 1983.