UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1677
EVE M. DAVIS,
Plaintiff - Appellant,
v.
WALMART STORES EAST, L.P.; BRENDA GREER,
Defendants - Appellees,
and
STEPHANIE C. FITZGERALD,
Defendant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:15-cv-00387-HEH)
Submitted: March 21, 2017 Decided: May 1, 2017
Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Jonathan E. Halperin, Isaac A. McBeth, HALPERIN LAW CENTER LLC,
Glen Allen, Virginia, for Appellant. W. Bradford Stallard,
PENN, STUART & ESKRIDGE, Abingdon, Virginia; Terrence L. Graves,
Christopher K. Jones, SANDS ANDERSON PC, Richmond, Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Eve Davis appeals the district court’s orders granting
Brenda Greer and Walmart Stores East, L.P.’s (“Walmart”) motions
to dismiss and denying her motion for leave to file a second
amended complaint. Davis claimed that the Defendants conspired
with law enforcement to effect her unlawful arrest, in violation
of 42 U.S.C. § 1983 (2012), and raised numerous state tort
claims. For the reasons that follow, we affirm in part, vacate
in part, and remand.
I.
“Because the district court dismissed [Davis’] claims under
Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim, we review legal issues de novo and treat the facts
alleged in the complaint as true.” Nemphos v. Nestle Waters N.
Am., Inc., 775 F.3d 616, 617 (4th Cir. 2015). Thus, we recount
the pertinent facts in the light most favorable to Davis.
Davis sought to have a prescription for Adderall filled at
a Walmart store located in Fredericksburg, Virginia. Adderall
is a Schedule II controlled substance. Refills are prohibited
by law and there are additional restrictions placed upon a
physician’s ability to issue new 30-day prescriptions. After
reviewing the prescription and searching for Davis in Virginia’s
Prescription Monitoring Program (“PMP”), an electronic database
detailing a person’s prescription filling history, pharmacist
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Brenda Greer determined that Davis had filled an Adderall
prescription for the same amount just four days prior,
indicating that it might not be a legal prescription. Greer
contacted the physician whose signature appeared on the
prescription to inquire as to its validity and left a voicemail
message. Greer also called the non-emergency number for the
local Sheriff’s Department. She told the dispatcher that Davis
“is turning in prescriptions with the same date on it for the
same medicine at two pharmacies, she tried to give me one and
she just got it filled at CVS . . . . Needless to say it’s
fake.” (J.A. 147). 1
Deputy James Harney was dispatched to the Walmart. While
en route, Harney contacted Greer by telephone. During the
conversation, Greer told Harney that the pharmacy needed more
time to verify the status of the prescription, but that the PMP
history had raised some red flags. Harney instructed Greer to
stall Davis until he arrived, and to point her out to him so
that he could talk to her. When Harney arrived at the pharmacy,
Greer called Davis’ name and signaled Harney, who immediately
handcuffed Davis. (J.A. 32). Harney, accompanied by a Walmart
employee, took Davis to Walmart’s loss prevention office and
1Citations to “J.A. __” refer to the Joint Appendix filed
by the parties in this appeal.
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questioned her. Davis was subsequently arrested and jailed for
16 days before the Commonwealth’s attorney dismissed the charge
of attempting to obtain medication by fraud. (J.A. 34, 36-37).
Two days after Davis’ arrest, her physician informed the
pharmacy that the prescription in question was valid. Greer did
not relay this information to the Sheriff’s Department.
II.
First, Davis argues that the district court erred in
dismissing her false imprisonment claim against Walmart. In her
complaint, Davis asserted that Greer and Walmart, acting through
its employees, “instigated, directed, requested, and
participated in Deputy Harney’s unlawful arrest of Ms. Davis
whereby Ms. Davis’s physical liberty was restrained and
continued to be restrained . . . for a period of 16 days.”
(J.A. 38). On appeal, however, Davis argues that Walmart
falsely imprisoned her by allowing Harney to question her in its
loss prevention office with an employee present for the
questioning, thereby delaying her appearance before a
magistrate. “[Q]uestions not raised and properly preserved in
the trial forum will not be noticed on appeal, in the absence of
exceptional circumstances.” Long Term Care Partners, LLC v.
United States, 516 F.3d 225, 237 (4th Cir. 2008). Accordingly,
we decline to consider Davis’ false imprisonment claim.
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III.
Next, Davis argues that the court erred in dismissing her
claim of intentional infliction of emotional distress (IIED).
To establish liability for IIED in Virginia, a plaintiff must
prove: “(1) the wrongdoer’s conduct was intentional or reckless;
(2) the conduct was outrageous and intolerable; (3) there was a
causal connection between the wrongdoer's conduct and the
emotional distress; and (4) the emotional distress was severe.”
Harris v. Kreutzer, 624 S.E.2d 24, 33 (Va. 2006). To satisfy
the second element,
[I]t is insufficient for a defendant to have acted
with an intent which is tortious or even criminal.
Rather, . . . the conduct [must be] so outrageous in
character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized
community.
Id.
Davis alleged numerous actions by Greer that formed the
basis of her IIED claim. We conclude that the district court
properly rejected these arguments on the ground that the alleged
actions did not constitute outrageous or intolerable conduct.
Accordingly, we affirm the disposition of this claim.
IV.
Davis asserts that the district court erred in dismissing
her assumption of duty claim after the court concluded that
Virginia does not recognize such a claim. Alternatively, Davis
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asserts that, if no such freestanding claim exists in Virginia,
the district court should have construed it as a negligence
claim premised on the theory of assumption of duty.
Virginia has recognized the concept of assumption of duty
as “one who assumes to act, even though gratuitously, may
thereby become subject to the duty of acting carefully, if he
acts at all.” Kellermann v. McDonough, 684 S.E.2d 786, 791 (Va.
2009). The district court correctly found that assumption of
duty is an alternate theory of the duty of care underlying a
negligence claim rather than an independent claim, see, e.g.,
id. (stating that party “pled a cause of action cognizable in
tort . . . on the theory that [defendant] assumed a duty”);
Didato v. Strehler, 554 S.E.2d 42, 49 (Va. 2001) (addressing
“plaintiffs’ claims of negligence and assumption of duties”);
Nolde Bros., Inc. v. Wray, 266 S.E.2d 882, 884 (Va. 1980)
(discussing assumption of duty in evaluating negligence claim).
Regardless, we conclude Davis cannot succeed on a
freestanding assumption of duty claim or a negligence claim
premised on assumption of duty because assumption of duty
applies only in a narrow subset of Virginia cases: “wrongful
death, wrongful birth, and one specific type of negligent
driving cases.” Bosworth v. Vornado Realty L.P., 84 Va. Cir.
549, 2010 WL 8925838, at *7 (Va. Cir. Ct. Dec. 20, 2010)
(collecting cases). Because Davis has failed to demonstrate
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that her case falls within the narrow class of cases to which
assumption of duty applies, we reject this argument.
V.
Next, Davis argues that the district court erred in
dismissing her claim that Greer and Walmart conspired with
Harney to violate her constitutional rights by arresting her
without probable cause. Establishing a civil conspiracy under
42 U.S.C. § 1983 requires a plaintiff to show that Defendants
“acted jointly in concert and that some overt act was done in
furtherance of the conspiracy which resulted in [plaintiff’s]
deprivation of a constitutional right.” Hinkle v. City of
Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996). To survive
dismissal under Rule 12(b)(6), a plaintiff must plead facts that
would “reasonably lead to the inference that [defendants]
positively or tacitly came to a mutual understanding to try to
accomplish a common and unlawful plan.” Id.
We conclude that the district court properly dismissed
Davis’s civil conspiracy claim. Although Greer communicated
with Harney and responded to some of his suggestions and
requests, Davis failed to plead facts sufficient to demonstrate
that Greer conspired with Harney to arrest Davis without
probable cause. Accordingly, we affirm the district court’s
dismissal of this claim.
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VI.
Davis next asserts that the district court erred in
dismissing her medical malpractice claim. To succeed on a
medical malpractice claim in Virginia, “a plaintiff must
establish not only that a defendant violated the applicable
standard of care, and therefore was negligent, the plaintiff
must also sustain the burden of showing that the negligent acts
constituted a proximate cause of the injury. . . .” Bitar v.
Rahman, 630 S.E.2d 319, 323 (Va. 2006).
Davis mentioned medical malpractice only fleetingly in her
complaint; she referenced her negligence and gross negligence
claims and sought to raise them as medical malpractice claims
“[t]o the extent any of the claims . . . are subsumed by the
Virginia Medical Malpractice Act.” (J.A. 47). Davis’ medical
malpractice claim did not allege a particular standard of care
or breach of that standard based on Greer’s role as a
pharmacist.
On appeal, Davis significantly expands this claim,
discussing the applicable standard of care. However, this
argument was not properly raised in the district court.
Accordingly, we decline to consider it.
VII.
Finally, Davis alleges that Greer and Walmart committed
negligence per se because Greer revealed information she
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received from the PMP to law enforcement in violation of Va.
Code Ann. § 54.1-2525 and 18 Va. Admin. Code § 110-20-25(2),
(4).
The doctrine of negligence per se represents the
adoption of the requirements of a legislative
enactment as the standard of conduct of a reasonable
person. The elements of negligence per se are well-
established. First, the plaintiff must prove that the
defendant violated a statute enacted for public
safety. Second, the plaintiff must belong to the
class of persons for whose benefit the statute was
enacted, and demonstrate that the harm that occurred
was of the type against which the statute was designed
to protect. Third, the statutory violation must be a
proximate cause of plaintiff's injury. The first and
second of these elements are issues of law to be
decided by a trial court, while the third element is
generally a factual issue to be decided by the trier
of fact.
Kaltman v. All Am. Pest Control, Inc., 706 S.E.2d 864, 872 (Va.
2011) (brackets, internal citations, and quotation marks
omitted). “However, a statute setting the standard of care does
not create the duty of care.” Steward ex rel Steward v. Holland
Family Props., LLC, 726 S.E.2d 251, 254 (Va. 2012).
A.
First, Davis argues that the district court erred in
dismissing her negligence per se claim premised on Va. Code Ann.
§ 54.1-2525, which prohibits disclosure of confidential
information from the PMP. Although Davis’ complaint asserted
that the statute was enacted for public health and safety, there
is no indication from the face of the statute that it was
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“enacted for public health and safety reasons,” Steward, 726
S.E.2d at 254, nor is there any case law interpreting the
statute in that way. Accordingly, we conclude that the district
court did not err in dismissing this claim.
B.
Davis also challenges the dismissal of her negligence per
se claim premised on 18 Va. Admin. Code § 110-20-25(2), (4),
which states in relevant part that:
The following practices shall constitute
unprofessional conduct within the meaning of § 54.1-
3316 of the Code of Virginia:
. . .
2. Willfully or negligently breaching the
confidentiality of a patient unless otherwise required
or permitted by applicable law;
. . .
4. Engaging in disruptive or abusive behavior in a
pharmacy or other health care setting that interferes
with patient care or could reasonably be expected to
adversely impact the quality of care rendered to a
patient . . . .
Davis has supported her claim that the purpose of 18 Va. Admin.
Code § 110-20-25 is public health and safety, as required to
establish a negligence per se claim.
With regard to Appellees’ argument that Davis has not
alleged a violation of § 10-20-25(4), we agree with the district
court that Davis’ allegations do not rise to the level of
disruptive or abusive behavior by Greer. Although Appellees
contend that Davis has not alleged a violation of § 10-20-25(2),
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however, there is no dispute that Greer disclosed confidential
information to law enforcement within the meaning of § 10-20-
25(4). And while Va. Code Ann. §§ 32.1-127.1:03(D)(31) and §
54.1-3408.2 may ultimately immunize Greer’s release of
information, both sections require the release to be done in
good faith. The evidence may not substantiate a claim that
Greer acted in bad faith when she contacted the authorities, but
we conclude that it is inappropriate to resolve this issue at
the motion to dismiss stage.
Accordingly, we vacate the district court’s dismissal of
Davis’ claim of negligence per se premised on 18 Va. Admin. Code
§ 110-20-25(2), and remand for further proceedings. We express
no opinion about the merits of the claim. As to all other
claims, we affirm. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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