                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


ROBERT F. SPIERS,                         
                    Plaintiff-Appellee,
                 v.                               No. 00-1712
GENE E. SYDNOR,
              Defendant-Appellant.
                                          
           Appeal from the United States District Court
         for the Eastern District of Virginia, at Richmond.
            Richard L. Williams, Senior District Judge.
                           (CA-97-841)

                      Argued: January 22, 2001

                      Decided: February 26, 2001

  Before WILKINS, MICHAEL, and TRAXLER, Circuit Judges.



Affirmed in part and reversed in part by unpublished per curiam opin-
ion.


                              COUNSEL

ARGUED: John Adrian Gibney, Jr., SHUFORD, RUBIN & GIB-
NEY, P.C., Richmond, Virginia, for Appellant. William P. Hanson,
Jr., EMROCH & KILDUFF, L.L.P., Richmond, Virginia, for Appel-
lee. ON BRIEF: William B. Kilduff, EMROCH & KILDUFF,
L.L.P., Richmond, Virginia, for Appellee.
2                          SPIERS v. SYDNOR
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Richmond County, Virginia Sheriff Gene E. Sydnor appeals the
denial of his motions for judgment as a matter of law on Robert F.
Spiers’ claims for false imprisonment and intentional infliction of
emotional distress. Sheriff Sydnor challenges primarily the suffi-
ciency of the evidence regarding each claim. We affirm in part and
reverse in part.

                                   I.

   The evidence, viewed in the light most favorable to Spiers, reveals
the following. On October 11, 1997, Spiers, who was employed as the
director of the Lancaster High School marching band, was leading the
band in a parade through Warsaw, Virginia. As the parade progressed,
the band moved more slowly than the unit preceding it, causing a gap
to develop between the units.

   Sheriff Sydnor was controlling traffic flow at an intersection on the
parade route. Because the gap between Spiers’ band and the unit pre-
ceding it had grown so large that one could no longer see the unit
ahead over the crest of a hill, Sheriff Sydnor directed Spiers, who was
in front of the band, to speed up. Sheriff Sydnor was concerned about
the traffic hazard created when a large gap develops in a parade, per-
mitting drivers to pull onto the parade route without recognizing that
a parade is in progress. Spiers responded to Sheriff Sydnor that the
band was moving as quickly as possible. Sheriff Sydnor said, "[P]ick
up the pace, or you are out of the parade." J.A. 94. Spiers again
responded, "[W]e are marching as fast as we can." Id.

   Without giving any further instruction, Sheriff Sydnor then
approached and grabbed a banner being carried by two marchers,
stopping the marchers and beginning to turn them to the right. Con-
                           SPIERS v. SYDNOR                            3
fused as to what Sheriff Sydnor was doing, Spiers instructed the band
to continue marching. Sheriff Sydnor immediately turned around,
handcuffed Spiers, and informed him that he was under arrest. Sheriff
Sydnor required Spiers to sit on the curb of the street and said,
"[N]ow sit here and let everybody look at you." Id. at 96. Spiers sat
handcuffed on the curb for approximately 15 or 20 minutes until an
off-duty Virginia State police officer intervened and advised Sydnor
that he should take Spiers away if he planned to arrest him. Spiers
was then walked approximately two blocks to the police station,
where he was questioned and released. No charges were ever filed.

   Spiers instituted this suit against Sheriff Sydnor, alleging a cause
of action under 42 U.S.C.A. § 1983 (West Supp. 2000), as well as
state law claims for false imprisonment and intentional infliction of
emotional distress. Following discovery, Sheriff Sydnor moved for
summary judgment on several grounds, including qualified immunity.
After his motion was denied, Sheriff Sydnor appealed to this court the
denial of summary judgment regarding the federal cause of action,
and this court reversed, holding that Sheriff Sydnor was entitled to
qualified immunity because he had probable cause to arrest Spiers for
obstruction of justice. See Spiers v. Sydnor, 173 F.3d 852, 1999 WL
125727, at **2 (4th Cir. 1999) (per curiam) (unpublished table deci-
sion).

   During the trial that followed, Sheriff Sydnor moved for judgment
as a matter of law at the close of Spiers’ case and at the close of all
of the evidence. See Fed. R. Civ. P. 50(a). Both motions challenged
the sufficiency of the evidence, and both were denied by the district
court. A jury awarded Spiers compensatory damages of $10,000 and
punitive damages of $5,000 on the false imprisonment claim, and
compensatory damages of $5,000 on the claim of intentional infliction
of emotional distress. The district court subsequently denied Sheriff
Sydnor’s renewed motion for judgment as a matter of law. See Fed.
R. Civ. P. 50(b).

                                   II.

   Sheriff Sydnor first contends that the district court erred in denying
his motions for judgment as a matter of law on the false imprisonment
claim. We disagree.
4                           SPIERS v. SYDNOR
   A motion for judgment as a matter of law should be granted if the
district court determines that the nonmoving party "has been fully
heard . . . and [that] there is no legally sufficient evidentiary basis for
a reasonable jury to find for that party." Fed. R. Civ. P. 50(a)(1). We
review the denial of a Rule 50(a) motion de novo, viewing the facts
in the light most favorable to the nonmoving party. See Chaudhry v.
Gallerizzo, 174 F.3d 394, 404-05 (4th Cir.), cert. denied, 528 U.S.
891 (1999).

   The tort of false imprisonment is defined in Virginia as "restraint
of one’s liberty without any sufficient legal excuse therefor by word
or acts which he fears to disregard, and neither malice, ill will, nor
the slightest wrongful intentions is necessary to constitute the
offense." Montgomery Ward & Co. v. Freeman, 199 F.2d 720, 723
(4th Cir. 1952) (internal quotation marks omitted). "False imprison-
ment may result not only from the arrest of a person without any valid
warrant, but also from the unlawful detention of a prisoner who has
been lawfully arrested." Sands & Co. v. Norvell, 101 S.E. 569, 574
(Va. 1919); see Mullins v. Sanders, 54 S.E.2d 116, 120 (Va. 1949).

   In Virginia, a uniformed officer generally "may arrest, without a
warrant, any person who commits any crime in the presence of the
officer." Va. Code Ann. § 19.2-81 (Michie 2000). However, in the
case of certain minor violations, such as Class 1 or 2 misdemeanors,
the officer generally is limited to issuing a summons for the offense.
See Va. Code Ann. § 19.2-74(A)(1) (Michie 2000); cf. Lovelace v.
Commonwealth, 522 S.E.2d 856, 860 (Va. 1999) (explaining that
under § 19.2-74, the "‘arrest’ . . . is effected by issuing a citation or
summons rather than taking the suspect into custody").

   Sheriff Sydnor asserts that he had probable cause to believe that
Spiers had violated Va. Code Ann. § 18.2-460(A) (Michie Supp.
2000), which provides that "any person [who] without just cause
knowingly obstructs . . . any law-enforcement officer in the perfor-
mance of his duties . . . shall be guilty of a Class 2 misdemeanor."
Even assuming that Sheriff Sydnor had reason to believe Spiers had
committed the Class 2 misdemeanor of obstruction of justice, and
therefore that he had a right to issue Spiers a summons, that offense
did not give Sheriff Sydnor the right to make the equivalent of a cus-
todial arrest. See Farrow v. Commonwealth, 525 S.E.2d 11, 13 (Va.
                            SPIERS v. SYDNOR                             5
Ct. App. 2000) (concluding that handcuffing person who committed
Class 3 misdemeanor and walking him to security office where sum-
mons papers were kept was unlawful because it constituted "the cus-
todial equivalent to arrest"); Rhodes v. Commonwealth, 513 S.E.2d
904, 906 n.6 (Va. Ct. App. 1999) (explaining that a "custodial arrest
for a minor offense" is illegal when "a state has abjured the authority
to execute custodial arrests for [such minor] offenses" (alteration in
original) (internal quotation marks omitted)). Because Sheriff Sydnor
had no authority to detain Spiers as he did, the district court correctly
denied Sheriff Sydnor’s motions for judgment as a matter of law on
the false imprisonment claim.1

                                   III.

   Sheriff Sydnor also contends that the district court erred in denying
his motions for judgment as a matter of law on Spiers’ intentional
infliction of emotional distress claim. We agree.

   To establish liability for intentional infliction of emotional distress,
a plaintiff must prove four elements: "the wrongdoer’s conduct is
intentional or reckless; the conduct is outrageous and intolerable; the
alleged wrongful conduct and emotional distress are causally con-
nected; and, the distress is severe." Russo v. White, 400 S.E.2d 160,
162 (Va. 1991). Importantly, under Virginia law "liability arises only
when . . . the distress inflicted is so severe that no reasonable person
could be expected to endure it." Id. at 163.

   We conclude that the distress suffered by Spiers was not suffi-
ciently severe to give rise to liability. Russo is instructive in this
regard. There, the plaintiff alleged "that she was nervous, could not
sleep, experienced stress and its physical symptoms, withdrew from
activities, and was unable to concentrate at work." Id. (internal quota-
tion marks omitted). Noting that the plaintiff did not claim "that she
had any objective physical injury caused by the stress, that she sought
  1
   Sheriff Sydnor also contends that three erroneous jury instructions
may have caused the finding by the jury that he was liable for false
imprisonment. Because the evidence of the arrest was uncontroverted
and because there was no legal justification for the custodial arrest, any
error in the instructions was harmless.
6                          SPIERS v. SYDNOR
medical attention, that she was confined at home or in a hospital, or
that she lost income," the court held that "the alleged effect on the
plaintiff’s sensitivities is not the type of extreme emotional distress
that is so severe that no reasonable person could be expected to
endure it." Id.

   Here, the emotional distress proven by Spiers was no more severe
than that alleged in Russo. Spiers testified that he "was very, very
upset, very confused all day" after the detention, that he "lost a lot of
sleep" the next week, and that he "couldn’t stop thinking about it."
J.A. 103-04. He also testified that he gets "a panic kind of feeling"
when coming in contact with a police officer. Id. at 104. Because the
severity of Spiers’ emotional distress was not distinguishable from
that determined to be insufficient to sustain the cause of action in
Russo, the district court erred in denying Sheriff Sydnor’s motions for
judgment as a matter of law on the intentional infliction of emotional
distress claim.2

                                  IV.

   In sum, we affirm the denial of the motions for judgment as a mat-
ter of law on the false imprisonment claim and reverse the denial of
the same motions on the intentional infliction of emotional distress
cause of action.

                   AFFIRMED IN PART AND REVERSED IN PART
    2
   In light of our ruling, we do not decide whether Sheriff Sydnor’s con-
duct was outrageous.
