(dissenting):
The plaintiff, Warren Jobson, is a mental defective who has spent most of his adult life in state schools for the mentally defective. He was committed at the age of 12, at which time he had an I.Q. of 50 and a mental age of six and one-half years. After some improvement he was discharged in May 1956, but was recertified to the Newark [New York] State School for Mental Defectives on June 5, 1956, after he had been arrested and had pleaded guilty to charges of petty larceny and burglary in the third degree. Tests at the time of readmission indicated an I.Q. of 67; tests in 1963 indicated an I.Q. of 58. At present, Job-son appears to be supporting himself outside of the state mental institutions.
While at the Newark School, Jobson often worked at night in the boiler room, sometimes six nights a week, eight hours a night. In addition he did jobs about the community at wages fixed by the school. In November 1963, he brought suit in the Western District of New York against the director of the Newark School, two assistant directors, and a supervising psychiatrist, under 42 U.S.C. § 1983, alleging that he had been deprived of his civil rights by defendants, having been held by them in involuntary servitude, slavery, or peonage, and seeking $100,000 in damages. The trial court granted defendant’s motion for summary judgment, holding defendants immune from suit in light of the need for “effective administration of the state’s program for mental defectives and the effect that the fear of constant and vexatious suits may have upon persons charged with its administration.” From this judgment, plaintiff appeals.
The scope of the doctrine of official immunity to suit under the civil rights acts has never been well defined, perhaps *135because of the difficulty in reconciling the conflicting interests at stake, namely:
* * * the protection of the individual citizen against damage caused by oppressive or malicious action on the part of public officers, and the protection of the public interest by shielding responsible governmental officers against the harassment * * * of vindictive or ill-founded damage suits based on acts done in the exercise of their official responsibilities.
Norton v. McShane, 332 F.2d 855, 857 (5th Cir. 1964).
In the present case, defendants assert the state interest in being free to experiment in the therapeutic treatment of mental defectives; plaintiff asserts the need for some judicial review. Although to hold state psychiatrists absolutely immune from suit upon any state of facts might leave persons in the position of plaintiff without any means of securing judicial review, in the case now before us the allegations of the complaint and the affidavits on defendants’ motion for summary judgment show clearly that defendants were acting within their discretion in their assignment of work to the plaintiff. In support of their motion for summary judgment, defendants submitted expert opinions indicating that the work was beneficial to plaintiff and had therapeutic value; in opposition to defendant’s motion, plaintiff produced expert opinions that the work assignments were without therapeutic value. I would uphold the dismissal, interpreting- Judge Henderson’s decision not as holding that state psychiatrists are absolutely immune from suit under § 1983, but as holding that, as a matter of law, in light of the need to permit considerable flexibility in state treatment of mental defectives, plaintiff has failed to allege or show facts sufficient to constitute a cause of action under § 1983.
Such cases as there are on the subject support the action of the trial judge. To be sure, those cases upholding the dismissal of § 1983 actions against legislators, e. g., Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), and against judges, e. g., Arnold v. Bostwick, 339 F.2d 879 (9th Cir. 1964), may be distinguished from the present problem on the grounds of traditional desire to-keep legislative discussion and judicial- discretion absolutely untrammeled by fear of private damage actions.
However, the few cases under § 1983 involving treatment of insane persons or mental defectives strongly support the trial judge’s decision. In Francis v. Lyman, 216 F.2d 583 (1st Cir. 1954), the First Circuit upheld the dismissal of an action against various officials responsible for the confinement of the plaintiff in a mental institution. The statute under which plaintiff had been confined had been held in a prior habeas corpus proceeding to violate due process by failing to provide opportunity for a fair hearing. The case holds only that officials of a mental institution cannot be held responsible for any lack of due process in the judicial commitment proceedings; but the court in broad dicta indicated a desire to restrict § 1983 to cases of racial discrimination. Still more in point is Hoffman v. Halden, 268 F.2d 280 (9th Cir. 1959), in which the plaintiff alleged that the superintendent of the state mental hospital improperly failed to release the plaintiff, although he had the power to order the plaintiff’s release. The court upheld the dismissal of the action against the superintendent on the grounds that the superintendent’s power was discretionary, and he should be immune from civil suits based upon the exercise of a discretionary function. See also Campbell v. Glen-wood Hills Hospital, Inc., 224 F.Supp. 27 (D.Minn.1963), in which the court ■dismissed an action based in part upon improper treatment of a mental patient after confinement, and Duzynski v. Nosal, 324 F.2d 924 (7th Cir. 1963), upholding dismissal of a § 1983 complaint based upon abuse of discretion on the part of the committing doctor.
*136For general discussions of the problem of official immunity and § 1983, see Note, The Civil Rights Act of 1871; Continuing Vitality, 40 Notre Dame Law. 70, 75-77 (1964); Note, Civil Rights Act Section. 1983: Abuses by Law Enforcement Officers, 36 Ind.LJ. 317 (196-1); Comment, Civil Liability of Subordinate State Officials Under the Federal Civil Rights Act and the Doctrine of Official Immunity, 44 Calif.L. Rev. 887 (1956); Note, The Doctrine of Official Immunity Under the Civil Rights Acts, 68 Harv.L.Rev. 1229 (1955); Note, The Proper Scope of the Civil Rights Acts, 66 Harv.L.Rev. 1285, 1295-99 (1953).
The reluctance of the courts to entertain actions of this sort is. understandable. State psychiatrists need scope in their attempts to treat mental defectives, and courts have enough to do without practicing psychiatry. Only when a course of treatment is prescribed which cannot reasonably be defended as therapeutic should a suit of this type be able to withstand a defense motion for summary judgment. This is not such a case. I would affirm.