Waterman, Moore and Friendly, Circuit Judges. Moore, Circuit Judge (dissenting).
The plaintiff-appellant, Warren Jobson, was an inmate of the New York State Newark State School for Mental Defectives most of his life. He was first committed to it on August 27, 1935 when he was twelve years old. There he remained until he was placed on home convalescent care status in 1953. He was finally discharged on May 16, 1956, and shortly thereafter he apparently became associated with a group of boys who were engaged in various unlawful activities. He was soon arrested, was indicted, and pleaded guilty to the crimes of petty larceny and burglary in the third degree. Prior to sentence the charges were dropped, and twenty days after his discharge on June 5, 1956, the appellant was recertified to the Newark State School, where he remained until late in the year 1963.*fn1
On November 18, 1963 the appellant filed a complaint in the United States District Court for the Western District of New York, naming the director of the Newark State School, two assistant directors, and the school's supervising psychiatrist as parties defendant. The complaint sought a judgment for money damages totaling $100,000, alleging, inter alia, that "the defendants for a period of many months last past have wilfully, intentionally and maliciously held the plaintiff in and to involuntary servitude, peonage and/or slavery in and in the vicinity of the Newark State School * * *" in violation of 42 U.S.C. § 1983, which reads as follows:
§ 1983. Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Federal jurisdiction was asserted under § 1983, 28 U.S.C. § 1343, and 28 U.S.C. § 1331.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure the defendants moved with supporting affidavits for summary judgment in their favor. The appellant served affidavits in opposition to the defendants' motion. Judge Henderson granted the motion in a brief opinion filed on March 26, 1965. He did not hold that summary judgment was proper because there was no genuine issue as to a material fact. Indeed, Judge Henderson noted that "on the present record * * * the court obviously cannot determine whether work assignments in any instance were excessive." Nevertheless, the lower court decided the defendants were entitled to judgment as a matter of law because they were state officials and entitled to invoke traditional judge-made doctrines of official immunity*fn2 in a suit brought against subordinate state officials to enforce the tort liability created by 42 U.S.C. § 1983.
At the outset it should be noted that what we say in this case on the subject of the protection afforded by the Thirteenth Amendment has no bearing on the legality of the imprisonment of persons duly convicted of a crime; such persons are explicitly excepted from the Amendment's coverage. United States ex rel. Smith v. Dowd, 271 F.2d 292 (7 Cir. 1959), cert. denied, 362 U.S. 978, 80 S. Ct. 1063, 4 L. Ed. 2d 1013 (1960).
On a record so devoid of facts it is clearly impossible at this time to resolve the merits of appellant's constitutional claim that as an inmate at the Newark State School he was forced to work under conditions that were tantamount to slave labor. All we can now decide is whether, assuming that what the plaintiff alleges is provable, the complaint states a claim upon which relief can be granted. Cf. Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946). If it does not state such a claim the decision of the lower court can be affirmed on that ground. But if the complaint does state a claim upon which relief can be granted we must go on to decide whether the parties-defendant in this case, because of their offices, are immune from suit brought under § 1983.
Thus we turn to consider whether the complaint states a cause of action on which a court can grant relief. We assume that even though the purpose of the Thirteenth Amendment was to proscribe conditions of "enforced compulsory service of one to another," Hodges v. United States, 203 U.S. 1, 16, 27 S. Ct. 6, 8, 51 L. Ed. 65 (1906), the states are not thereby foreclosed from requiring that a lawfully committed inmate perform without compensation certain chores designed to reduce the financial burden placed on a state by its program of treatment for the mentally retarded, if the chores are reasonably related to a therapeutic program, or if not directly so related, chores of a normal housekeeping type and kind.*fn3 Proceeding on this assumption it would seem to follow that those in control of institutions for the mentally retarded may subject inmates to a wide variety of programs with both therapeutic and cost saving purposes without violating the Thirteenth Amendment.*fn4 Nevertheless, there may be some mandatory programs so ruthless in the amount of work demanded, and in the conditions under which the work must be performed, and thus so devoid of therapeutic purpose, that a court justifiably could conclude that the inmate had been subjected to involuntary servitude. In the present case the appellant's supporting affidavits state that for long periods of time he was forced to work in the Newark State School's boiler house eight hours a night, six nights a week, while working eight hours a day at assigned jobs in the village of Newark.*fn5
As we cannot say that any such work program would not go beyond the bounds permitted by the Thirteenth Amendment, the complaint states a claim under § 1983. We must therefore reverse the district court's grant of the motion for summary judgment unless we can conclude that the lower court correctly applied the defense of official immunity. This follows from the present posture of this case. The case comes up upon the district court's grant of the defendants' motion for summary judgment and in this context factual disputes must be resolved in the manner most favorable to the party opposing the motion, here the plaintiff-appellant. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962). The fact that the trial court believed it unlikely that the plaintiff-appellant would prevail at trial is insufficient to authorize summary judgment against him. See National Screen Serv. Corp v. Poster Exch., Inc., 305 F.2d 647 (5 Cir. 1962). If we resolve the factual uncertainties in favor of the plaintiff-appellant, it is clear that he is entitled to a trial unless the doctrine of official immunity bars recovery.*fn6
Thus we reach the question whether these defendants by reason of their offices should be immune from the tort liability imposed by § 1983. The Civil Rights Acts in general,*fn7 and § 1983 in particular, are cast in terms so broad as to suggest that in suits brought under these sections common law doctrines of immunity can never be a bar. Nevertheless, courts have narrowed the scope of these provisions by applying certain common law notions of official immunity from suit; it is now clear, for example, that the common law immunity from suit afforded legislative*fn8 and judicial*fn9 officers continues to have force in suits brought under the Civil Rights provisions. See generally, Note, The Doctrine of Official Immunity Under the Civil Rights Acts, 68 Harv.L.Rev. 1229 (1955).
It should be equally clear that both the language and the purpose of the Civil Rights Acts are inconsistent with the application of common law notions of official immunity in all suits brought under these provisions. See Norton v. McShane, 332 F.2d 855, 861 (5 Cir. 1964), cert. denied, 380 U.S. 981, 85 S. Ct. 1345, 14 L. Ed. 2d 274 (1965). In suits brought under § 1983 an indispensable element of a plaintiff's case is a showing that the defendant (or defendants) acted "under color of any statute, ordinance, regulation, custom, or usage, of any State * * *." 42 U.S.C. § 1983. This test can rarely be satisfied in the case of anyone other than a state official. See Collins v. Hardyman, 341 U.S. 651, 662, 71 S. Ct. 937, 95 L. Ed. 1253 (1951). To hold that all state officials in suits brought under § 1983 enjoy an immunity similar to that they might enjoy in suits brought under state law "would practically constitute a judicial repeal of the Civil Rights Acts." Hoffman v. Halden, 268 F.2d 280, 300 (9 Cir. 1959). Furthermore, and perhaps more basically, the purpose of § 1983 as well as the other Civil Rights provisions is to provide a federal remedy for the deprivation of federally guaranteed rights in order to enforce more perfectly federal ...