# Fox v. Custis

> Court of Appeals for the Fourth Circuit · July 13, 1983 · 712 F.2d 84

URL: https://www.frixlaw.com/law-library/cases/8917335

## Case

- **Full name:** Constance P. FOX Lisa M. Morris, by her next friend, Miriam J. Morris Wendy F. Morris, by her next friend, Miriam J. Morris v. Roy S. CUSTIS John R. Chandler, Jr.
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** July 13, 1983
- **Citations:** 712 F.2d 84
- **Precedential status:** Published
- **Opinion:** Concurring in part by Hall
- **Judges:** Gordon, Hall, Phillips
- **Cited by:** 116 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8917335

## How later opinions describe it (automated extraction)

- finding no specific danger where state agent exposed to a virtually unlimited set of people

## Opinion text

K.K. HALL, Circuit Judge,
concurring in part and dissenting in part:
I concur in that portion of the majority’s opinion which affirms the district court’s dismissal of appellants’ § 1983 claims. However, I cannot agree with the majority’s conclusion that the district court erred in dismissing the appellants’ pendent state claims. I, therefore, dissent from that portion of the majority opinion which vacates the decision of the district court and requires those claims to be remanded to the state court.
Unlike the majority, I am not persuaded that there are circumstances in this case requiring a remand of appellants’ pendent state claims, which were properly removed under 28 U.S.C. § 1441 (a). In my view, the retention of those claims was well within the district court’s sound discretion. I believe that in ruling on them the district court did not exceed its discretion and correctly concluded that the defendant parole officers were immune from liability under Virginia tort law.
Following his parole from prison, where he had been confined because of his convictions for arson and grand larceny, Mason committed a misdemeanor by defrauding an innkeeper. The defendants made a conscious decision to permit Mason to remain on parole following his conviction for this offense. The misdemeanor was related neither to his prior convictions nor to the subsequent crimes which are the basis of the present action.
Appellants claim that Va.Code § 53-250(4) requires a parole officer to arrest any individual who has violated the terms of his *91 parole. 1 Significantly, however, this statute imposes no sanctions on a parole officer who makes a decision, as here, not to arrest a parole violator. In addition, appellants’ argument totally ignores the fact that discretion is the very essence of a parole officer’s duties. From hindsight, the decision not to arrest Mason was regrettably a mistake. But, at least on the facts of this case, it cannot be said that in making their decision the parole officers acted outside the scope of their authority. See James v. Jane, 221 Va. 43, 53 , 267 S.E.2d 108, 113-114 (1980); Gregoire v. Biddle, 177 F.2d 579 (2d Cir.1949).
In my view, the district court correctly concluded that the provisions of Va.Code § 53-250(4), “in spite of the use of the word ‘shall,’ allows parole officers a certain degree of discretion regarding determinations that a parole violator should be arrested.” I would, accordingly, affirm the order of the district court in its entirety, including that portion which dismisses appellants’ pendent state claims.
. The statute at issue reads in pertinent part as follows:
§ 53-250. Functions, powers and duties of probation and parole officers.
—In addition to other functions, powers and duties prescribed by this article, each probation and parole officer shall ...
(4) Arrest, and recommit to the place of confinement from which he was released, or ta which he would have been confined but for the suspension of his sentence or of its imposition, for violation of the terms of probation or parole, any probationer or parolee under his supervision, or as directed by the Chairman, Board member, or the court, pending a hearing by the Board or the court, as the case may be....

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8917335. Public record. Not legal advice.