                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-1002


JOHN HILLIARD MASTERSON,

                Plaintiff – Appellant,

          and

GINA CROCENZI MASTERSON,

                Plaintiff,

          v.

CHRISTOPHER IHARA, Virginia State Police,

                Defendant – Appellee,

          and

BUTLER L. GRANT; CHARLIE RAY FOX, JR., Fauquier            County
Sheriff; CHRISTOPHER BURKES, Virginia State Police,

                Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:10-cv-00445-LMB-JFA)


Submitted:   August 8, 2011                 Decided:   August 15, 2011


Before KING, DUNCAN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.
Richard E. Gardiner, Fairfax, Virginia, for Appellant.   Kenneth
T. Cuccinelli, II, Attorney General, Wesley G. Russell, Jr.,
Deputy Attorney General, Peter R. Messitt, Senior Assistant
Attorney General, Paul Kugelman, Jr., Assistant Attorney General
III, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

             John Hilliard Masterson appeals the district court’s

dismissal of his malicious prosecution claim against Virginia

State Trooper Christopher Ihara for failure to state a claim.

On   appeal,    Masterson     asserts    that   his    complaint    did   state    a

claim with respect to each element of malicious prosecution.                      He

argues   that    the    district     court    failed    to    accept    the   facts

alleged in the complaint as true and did not view the facts in

the light most favorable to him.             We affirm.

             We review de novo the district court’s rulings on a

motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).                         See

Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 768

(4th Cir. 2011).        A motion to dismiss under Rule 12(b)(6) should

not be granted unless it appears that the plaintiff does not

allege enough facts to state a claim “that is ‘plausible on its

face’” and that raises “‘a right to relief above the speculative

level.’”     Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555,   570   (2007))     (emphasis      omitted).      This    court    draws   all

reasonable inferences in favor of the plaintiff, but we “need

not accept the legal conclusions drawn from the facts, and we

need   not   accept     as   true   unwarranted     inferences,     unreasonable

conclusions        or         arguments.”                 Nemet        Cheverolet,

Ltd. v. Consumeraffairs.com, Inc.,               591         F.3d      250,     253

(4th Cir. 2009) (internal quotation marks omitted).

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              In an action for malicious prosecution under Virginia

law, “the plaintiff has the burden of proving four essential

elements:           that      the     prosecution          was        (1)    malicious,          (2)

instituted     by       or   with     the    cooperation         of    the       defendant,      (3)

without      probable        cause,      and     (4)    terminated          in    a    manner    not

unfavorable to the plaintiff.”                        Reilly v. Shepherd, 643 S.E.2d

216, 218 (Va. 2007).             “Actions for malicious prosecution arising

from criminal proceedings are not favored in Virginia,” and the

requirements are stricter for these actions than for other torts

in   order    “to       encourage        criminal       prosecutions             in    appropriate

cases without fear of reprisal by civil actions.”                                Id.

              Masterson        contends           the     district          court       erred     in

concluding     his       conviction         for    reckless       driving         signifies      the

prosecution        terminated         unfavorably.           He       argues      the    relevant

consideration is the disposition of the specific charge, not of

the entire criminal case.

              The elements of the reckless driving offense of which

Masterson was convicted are: “operat[ing] a motor vehicle at a

speed   or    in    a    manner     so      as    to    endanger      the    life,       limb,    or

property of any person . . . [o]n any driveway or premises of a

. . . recreational facility . . . .”                        Va. Code Ann. § 46.2-864

(2010).      Under Virginia law, assault requires:

      an attempt with force and violence, to do some bodily
      hurt to another, whether from wantonness or malice, by
      means calculated to produce the end if carried into

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       execution; it is any act accompanied by circumstances
       denoting an intention, coupled with a present ability,
       to use actual violence against another person.

Zimmerman v. Commonwealth, 585 S.E.2d 538, 539 (Va. 2003).

               In this case, Masterson’s driving was the means by

which     he        allegedly         committed              the     assault     in     question.

Accordingly, we conclude the outcome of Masterson’s prosecution

was unfavorable as to the assault charges for the purposes of a

malicious prosecution claim.                     Masterson’s reliance on Cuthrell

v.    Zayre    of     Virginia,        Inc.,     201         S.E.2d     779    (Va.     1974),   is

unavailing.          In Cuthrell, the Virginia Supreme Court held that

Cuthrell’s conviction for disorderly conduct did not establish

an    earlier       arrest      for    larceny       was           without    malice    and    upon

probable       cause.        Here,      however,              Masterson’s       conviction       for

operating       a    motor      vehicle        in        a    dangerous        manner    supplies

probable cause as to the assault charges, notwithstanding the

fact    that    Masterson        was     acquitted             under    the     more    stringent

proof-beyond-a-reasonable-doubt standard.

               Because we conclude that Masterson has failed to state

a claim that is plausible on its face as to the requirement that

the     prosecution       terminate         in       a       manner     not    unfavorable       to

Masterson,          we    need        not      reach           the     remaining        elements.

Accordingly, we affirm the judgment of the district court.                                       We

dispense       with      oral     argument          because          the     facts     and    legal




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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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