UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

OCTAVIA MARIE EATON,
Plaintiff-Appellant,

v.
                                                                No. 96-2518
PARAMOUNT PARKS, INCORPORATED,
d/b/a Kings Dominion, a/k/a
Paramount Kings Dominion,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-96-291-R)

Argued: March 6, 1998

Decided: April 6, 1998

Before WIDENER and WILKINS, Circuit Judges, and
MOON, United States District Judge for the
Western District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Clarence Mosley Dunnaville, Jr., HILL, TUCKER &
MARSH, Richmond, Virginia, for Appellant. Steven Colin McCal-
lum, MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Rich-
mond, Virginia, for Appellee. ON BRIEF: Renee L. Fleisher,
COHEN & DWIN, P.A., Baltimore, Maryland; Robert E. Walker, Jr.,
JOHNSON & WALKER, Richmond, Virginia, for Appellant. Charles
G. Meyer, III, MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P.,
Richmond, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Octavia Marie Eaton appeals an order of the district court granting
summary judgment in favor of Paramount Parks, Incorporated (Para-
mount) on Eaton's claims arising from Paramount's detention, arrest,
and prosecution of her for allegedly forging and uttering fraudulent
checks at Paramount's Kings Dominion theme park (the park). Find-
ing no error, we affirm.

I.

Eaton, a 420-pound black woman, was detained by Paramount
security guards after four Paramount employees positively identified
her as the woman who had entered the park six days earlier and writ-
ten two fraudulent checks totalling more than $650 under the name
of "Catherine May." After interviewing Eaton and the four employ-
ees, a Paramount security officer, who was also a deputized officer of
the Hanover County, Virginia Sheriff's Department, detained Eaton
and eventually took her to the Hanover County Jail.

The following day, after hearing testimony from the four employ-
ees, a magistrate found probable cause to issue warrants for Eaton's
arrest for grand larceny, forgery, and uttering false checks. A grand
jury also found probable cause to indict Eaton on those charges. At
Eaton's trial, however, a Hanover County court dismissed the
charges, ruling that the Commonwealth had not established Eaton's

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guilt beyond a reasonable doubt.1 Eaton then brought this action
against Paramount, alleging common-law claims for false
imprisonment,2 malicious prosecution, intentional infliction of emo-
tional distress, and battery and a statutory claim for insulting words,
see Va. Code Ann. § 8.01-45 (Michie 1992). The district court
granted summary judgment against Eaton on all of her claims, and she
now appeals.

II.

Eaton first argues that the district court erred in granting summary
judgment against her on the common-law claims on the basis that
there was no genuine issue of fact regarding whether Paramount had
probable cause to suspect her of the crimes she was alleged to have
committed.3 Eaton contends that whether Paramount had probable
cause to suspect her was a jury issue. We disagree.
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1 During the same time period in which Eaton allegedly uttered the
fraudulent checks, two other women were identified as having passed
fraudulent checks under the name of "Catherine May." The court noted
that an identification card recovered from one of the other suspects had
the same social security number that was written on the checks Eaton
was alleged to have uttered. Additionally, the court believed that the wit-
nesses might have confused Eaton with the woman pictured on the iden-
tification card. Moreover, handwriting tests of Eaton were inconclusive,
and she had several alibi witnesses.
2 Eaton also asserted a cause of action for false arrest, which in Virginia
is the same tort as false imprisonment. See Motley v. Virginia Hardware
& Mfg. Co., 287 F. Supp. 790, 792 (W.D. Va. 1968).
3 To prove false imprisonment, Eaton must demonstrate that she was
arrested without lawful process, see S. H. Kress & Co. v. Roberts, 129
S.E. 244, 246 (Va. 1925), and Eaton contends that her arrest was unlaw-
ful only because Paramount lacked probable cause. Furthermore, absence
of probable cause is an element of the tort of malicious prosecution. See
Gaut v. Pyles, 181 S.E.2d 645, 646-47 (Va. 1971). And, the initiation of
criminal proceedings when there is probable cause to do so cannot con-
stitute the intentional infliction of emotional distress. See Lewis v. First
Nat'l Bank of Stuart, 645 F. Supp. 1499, 1506 (W.D. Va. 1986), aff'd,
818 F.2d 861 (4th Cir. 1987) (unpublished table decision) (per curiam).
Finally, the touching accompanying Eaton's arrest would not be unlawful
--and hence would not constitute a battery, see Wood v. Commonwealth,
140 S.E. 114, 115 (Va. 1927)--if the arrest was supported by probable
cause.

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Summary judgment is appropriate when "there is no genuine issue
as to any material fact and ... the moving party is entitled to a judg-
ment as a matter of law." Fed. R. Civ. P. 56(c). We review an order
granting summary judgment de novo. See Becerra v. Dalton, 94 F.3d
145, 148 (4th Cir. 1996), cert. denied, 117 S. Ct. 1087 (1997).

"Probable cause is knowledge of such a state of facts and circum-
stances as excite the belief in a reasonable mind, acting on such facts
and circumstances, that the plaintiff is guilty of the crime of which he
is suspected." Giant of Va., Inc. v. Pigg, 152 S.E.2d 271, 275 (Va.
1967) (internal quotation marks omitted). In evaluating whether Para-
mount had probable cause to take action against Eaton, "the court
must look only to the time when the action complained of occurred."
Chipouras v. AJ&L Corp., 290 S.E.2d 859, 862 (Va. 1982).

Here, at the time of the acts complained of, Paramount most cer-
tainly had a reasonable basis for believing Eaton had passed the
fraudulent checks at issue because four employees identified Eaton in
no uncertain terms. Accordingly, the district court properly granted
summary judgment regarding all of these claims.

III.

Eaton also contends that the district court erred in granting sum-
mary judgment against her on her statutory claim for insulting words.
We disagree.

In order to prove a cause of action for insulting words, a plaintiff
must establish that the defendant's words "from their usual construc-
tion and common acceptance are construed as insults and tend to vio-
lence and breach of the peace." Va. Code Ann.§ 8.01-45. Here, Eaton
has never specified exactly what insulting words she alleges were
spoken to her. And, to the extent that her claim refers to the officers'
explanation for why she was being detained, such an explanation
under those circumstances would most certainly not"tend to violence
and breach of the peace." Id. Accordingly, the district court correctly
granted summary judgment against Eaton on this claim as well.4
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4 Because we affirm the grant of summary judgment against Eaton, we
conclude that her contention that venue was improperly transferred is
moot.

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IV.

In sum, we affirm the order of the district court granting summary
judgment against Eaton on all of her claims.

AFFIRMED

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