                              UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.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.



                                          4
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.



                                                8
                                            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

                                                9
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


                                         10
“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),


                                            11
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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