JAMES DICKSON PHILLIPS, Circuit Judge:
Constance Fox, Wendy Morris and Lisa Morris (claimants) appeal the district court's dismissal of their several claims against Roy Custis and John Chandler (defendants), employees of Virginia's Department of Corrections, Division of Probation and Parole Services. Claimants charged that the negligent failure of the defendants to reincarcerate Morris Odell Mason, a dangerous parolee under their supervision, renders them responsible for Mason's subsequent criminal acts against claimants. In one count, each asserted a cause of action under Virginia tort law and in another, each premised liability on 42 U.S.C. § 1983. In dismissing both claims, the district court held that the defendants were absolutely immune under state law to liability on the state tort claims and that the § 1983 count failed to state a claim for which relief could be granted.
We hold that the district court properly dismissed the § 1983 claims and therefore affirm that portion of its judgment. But because we hold that the court should have exercised its discretion not to decide the pendent state claims, we vacate that part of the district court's order and remand with instructions to remand those claims to the state court.
The critical facts, construed most liberally to claimants from their complaint, are these. Roy S. Custis and his immediate supervisor, John R. Chandler, Jr., employees of Virginia's Department of Corrections, Division of Probation and Parole Services, were assigned to supervise Morris Odell Mason when he was paroled on April 12, 1978.
Chandler and Custis possessed sufficient information of Mason's propensities for arson, sexual aberrations and other criminal behavior to alert them of his dangerousness. Within three weeks of Mason's release, on May 1, he defrauded an innkeeper in violation of Virginia Code § 18.2-188. On May 8, Mason was convicted of this offense and given a 30-day suspended sentence. Chandler and Custis were aware of Mason's conviction, and considered it a violation of his terms of parole. In fact, Chandler on May 10 wrote to Mason, "You are in violation of ... parole.... For this violation your parole could be revoked and you would have to go back to prison .... Mr. Custis has recommended that you be continued on parole."
Custis and Chandler also suspected, through information provided to them by the county sheriff, that Mason had committed an act of arson on May 1 that resulted in one woman's death. The defendants nevertheless did not revoke Mason's parole, but left him free.
On May 14, Mason set fire to Fox's home, raped, beat and set on fire Lisa Morris, and shot and stabbed appellant Wendy Morris. Mason has since been convicted of the arson-murder of May 1, a murder committed on May 13, and the various crimes of May 14 against claimants.
Claimants filed separate damage actions against Custis and Chandler in the Circuit Court of Northampton County, Virginia. Their state tort claims alleged that Va.Code § 53-250(4) (since repealed) required appellees to reincarcerate Mason as soon as they became aware that Mason had violated the terms of his parole, and that the appellees' negligent, willful, wanton and reckless disregard of their duty to supervise Mason proximately and foreseeably resulted in injury to the appellants.
Their claims under 42 U.S.C. § 1983 alleged that the negligent actions of the parole officers, under color of state law, deprived appellants of constitutionally protected rights without due process of law.
The defendants removed each action from the Circuit Court of Northampton County to federal district court, pursuant to 28 U.S.C. § 1441, after which the three cases were consolidated. Defendants subsequently moved to dismiss the several complaints. The district court granted the motion and this appeal followed.
The district court dismissed the § 1983 claim on the authority of Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980) (unanimous opinion). In Martinez, the Supreme Court held that the parents of a 15-year old girl, who was murdered by an unreasonably dangerous parolee five months after his release from prison, had no cognizable claim under 42 U.S.C. § 1983 against the parole officials who were responsible for his release. The Martinez Court conceded that the relevant officials "knew, or should have known, that the release of [the prisoner] created a clear and present danger that such an incident would occur." Id. at 280, 100 S.Ct. at 556. Nevertheless, the Court concluded that the parole officers "did not `deprive' appellants' decedent of life within the meaning of the Fourteenth Amendment." Id. at 285, 100 S.Ct. at 559.
The § 1983 claim in Martinez was that parole board officials, "by their action in releasing [an inmate to parole], subjected [the § 1983 claimants'] decedent to a deprivation of her life without due process of law." Id. at 283, 100 S.Ct. at 558 (footnote omitted). The claim here is that the parole officers, by failing to revoke Mason's parole, subjected these § 1983 claimants to deprivations of liberty and property without due process of law. The basic similarity of claims and issues is obvious.
The claim in Martinez was found not cognizable under § 1983 because "under the particular circumstances of [that] parole decision, [the victim's] death [was] too remote a consequence of the parole officers' action"
If we take the Martinez analytical approach as the appropriate one for decision here, the claims in this case differ from the claims there in two arguably significant respects. The time interval between state conduct and victim injury was considerably shorter here; and the defendants here, unlike the Martinez defendants, had responsibility for the post-release supervision of the parolee.
Predictably, claimants urge that the shorter time interval and the supervisory responsibility of these defendants distinguish this case from Martinez and compel the conclusion that the relationship between state action and victim injury here were not remote but so close as to constitute a "deprivation" of rights within the meaning of § 1983.
If Martinez provided the sole analytical framework for reaching decision here, we would on an assessment of the factors deemed relevant there find the injuries here also "too remote" from the challenged conduct of the state actors to constitute a "deprivation" of constitutional rights under § 1983. But the mix of factors here is concededly different and the cause and effect relationship concededly less attenuated that that in Martinez.
For that reason, another analytical approach — well established in § 1983 litigation — should and can be drawn upon to bolster the conclusion that no cognizable § 1983 claim is presented in this case. This approach concentrates primarily upon the exact nature of the constitutional rights protected by § 1983 rather than upon the remoteness of injury from state action that was the primary focus of the Martinez Court's analysis of § 1983's application in the same general factual pattern.
Threshold rights analysis under § 1983 begins with recognition that this section of the Civil Rights Act only protects against action under color of state law that "subjects ... any citizen ... or other person ... to the deprivation of any rights ... secured by the Constitution and laws" of the United States. See Baker v. McCollan, 443 U.S. 137, 146-47, 99 S.Ct. 2689, 2695-96, 61 L.Ed.2d 433 (1979). From this it follows that "[t]he first inquiry in any § 1983 suit ... is whether the plaintiff has been deprived of [such] a right," id. at 140, 99 S.Ct. at 2692, and this in turn involves "isolating the particular constitutional infringement complained of," Martinez, 444 U.S. at 284 n. 9, 100 S.Ct. at 559 n. 9.
Here the particular constitutional infringement complained of is the deprivation of liberty and property rights secured by the fourteenth amendment. In more specific factual terms, the claimants have asserted the right not to be injured in person
With one qualification, we agree with the Seventh Circuit's recent holding that, in general, there simply is "no constitutional right to be protected by the state against ... criminals or madmen," and that because, in corollary, there is no "constitutional duty [on the state] to provide such protection, its failure to do so is not actionable under section 1983." Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982). The qualification — an important one actually acknowledged by the Bowers court, id. — is that such a right and corollary duty may arise out of special custodial or other relationships created or assumed by the state in respect of particular persons. For example — as we have held in this circuit — such a right/duty relationship may arise under § 1983 with respect to inmates in the state's prisons or patients in its mental institutions whom the state knows to be under specific risk of harm from themselves or others in the state's custody or subject to its effective control. Withers v. Levine, 615 F.2d 158 (4th Cir.), cert. denied, 449 U.S. 849, 101 S.Ct. 136, 66 L.Ed.2d 59 (1980) (prison inmates under known risk of harm from homosexual assaults by other inmates); Davis v. Zahradnick, 600 F.2d 458 (4th Cir.1979) (inmate under observed attack by another inmate); Woodhous v. Virginia, 487 F.2d 889 (4th Cir.1973) (same as Withers); cf. Orpiano v. Johnson, 632 F.2d 1096, 1101-03 (4th Cir.1980), cert. denied, 450 U.S. 929, 101 S.Ct. 1387, 67 L.Ed.2d 361 (1981) (no right where no pervasive risk of harm and specific risk unknown); see also Spence v. Staras, 507 F.2d 554 (7th Cir.1974); Gann v. Delaware State Hospital, 543 F.Supp. 268, 272 (D.Del.1982); Walker v. Rowe, 535 F.Supp. 55 (N.D.Ill.1982) (duty of state to protect guards).
Without attempting a general definition of the special relationship required to give rise to a right, vindicable under § 1983, to affirmative protection by the state, it suffices to observe that none is claimed or appears here. The claimants here were simply members of the general public, living in the free society, and having no special custodial or other relationship with the state. As in Martinez, but unlike the situations in such cases as Withers, Davis, and Woodhous in this circuit, the state agent defendants here were "unaware that the [claimants] as distinguished from the public at large faced any special danger."
It was the claimants' tragic misfortune to be randomly victimized by the depredations of a criminal who was subject, but not subjected, to the effective control of the state. As Judge Posner observed in Bowers, "[i]t is monstrous if the state fails to protect its residents against such predators but it does not violate the due process clause of the Fourteenth Amendment ...," Bowers, 686 F.2d at 618. Whether such inaction by the state's agents may violate rights protected by state constitution or laws is, of course, another matter. See Martinez, 444 U.S. at 285, 100 S.Ct. at 559.
Because claimants had no federal constitutional right to be protected by the state from the acts of Mason, we hold that their claim under § 1983 must fail.
Claimants' state tort claims and their § 1983 claims arose from a "common nucleus of operative fact," United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966), and alleged a single wrong. Cf. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951). Therefore, these actions were properly removed to federal court under 28 U.S.C. § 1441(a).
The state court claims alleged that Va.Code § 53-250(4) imposed a ministerial duty upon the parole officers to reincarcerate Mason once they were aware that he had violated the terms of parole, and that the negligent failure to perform this non-discretionary duty proximately and foreseeably resulted in claimants' injuries. The pleadings also alleged that the officers' failure to reincarcerate Mason was in wanton and reckless disregard of appellants' safety, thereby taking the defendants outside the scope of their state employment and rendering them liable in tort to claimants. Under either of these theories, claimants contend, the defendants would not be shielded by absolute immunity as that principle has been developed by the Virginia courts.
The district court found that Custis and Chandler had not "acted outside the scope of their authority" or "improperly performed a ministerial function." Cf. Semler v. Psychiatric Institute, 538 F.2d 121, 127 (4th Cir.), cert. denied, 429 U.S. 827, 97 S.Ct. 83, 50 L.Ed.2d 90 (1976). It therefore granted the officers' motion to dismiss on grounds of absolute immunity.
In reaching this conclusion, the court was required to interpret Va.Code § 53-250(4) without definitive guidance from state court interpretive decisions. Its conclusion that absolute immunity existed was based upon a line of state court decisions culminating in James v. Jane, 221 Va. 43, 267 S.E.2d 108 (1980).
Without implying any criticism of the district court's analysis of the immunities defense, and reserving our own judgment on the matter, we observe that the state of state law on the subject was then and remains exceedingly difficult and unclear. As indicated, the Virginia courts had not had occasion to interpret the critical provisions of Va.Code § 53-250(4) as it bears upon this defense. Furthermore, it is fair to characterize the nature of the official immunities defense under state law as being in flux since the critical decision in James v. Jane, upon which the district court largely relied. Compare Banks v. Sellers, 224 Va. 168, 294 S.E.2d 862 (1982) (Thompson, J.) with id. at 174, 294 S.E.2d at 865 (Cochran, J., dissenting).
Under these circumstances we are of the opinion that once the § 1983 claim was dismissed on the merits, the appropriate course would have been for the district court, in an exercise of discretion, to remand
383 U.S. at 726, 86 S.Ct. at 1139 (footnotes omitted). See Financial General Bankshares, Inc. v. Metzger, 680 F.2d 768, 772-78 (D.C.Cir.1982); Rice v. President and Fellows, 663 F.2d 336, 339 (1st Cir.1981), cert. denied, 456 U.S. 928, 102 S.Ct. 1976, 72 L.Ed.2d 444 (1982); REA Express, Inc. v. Travelers Insurance Co., 554 F.2d 1200, 1201 (D.C.Cir.), cert. denied, 434 U.S. 858, 98 S.Ct. 182, 54 L.Ed.2d 131 (1977). After the appellants' § 1983 claim was resolved on the pleadings, the case was reduced to difficult and open questions of state law that were best resolved in the first instance by the Virginia courts.
We affirm the district court's dismissal of claimants' § 1983 claims. We vacate that part of the judgment holding the state tort claims barred by absolute immunity and remand with instructions to remand those claims to the state court.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
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
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.