                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 10-1670


LINDA R. TYREE,

                  Plaintiff – Appellant,

          and

JENNIFER D. MARSHALL,

                  Plaintiff,

          v.

UNITED STATES OF AMERICA,

                  Defendant – Appellee,

          and

DEANNE M. SEEKINS; TONEY HILL; FRED WILLIAMS,

                  Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.   James R. Spencer, Chief
District Judge. (3:09-cv-00663-JRS)


Submitted:     March 1, 2011                  Decided:   March 18, 2011


Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.
David R. Simonsen, Jr., Richmond, Virginia, for Appellant. Neil
H. MacBride, United States Attorney, Jonathan H. Hambrick,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

              Linda      R.     Tyree      filed     an    action          against      the

United States pursuant to the Federal Tort Claims Act (“FTCA”),

28 U.S.C. §§          2671-2680 (2006), alleging malicious prosecution

on an obstruction of justice charge, Va. Code Ann. § 18.2-460

(2009).       The Government moved for summary judgment and Tyree

moved for discovery pursuant to Fed. R. Civ. P. 56(f) (now Rule

56(d)).       The district court denied Tyree’s motion and granted

summary judgment in favor of the Government.                           Tyree noted a

timely appeal.         We affirm.

              On appeal, Tyree argues that the district court erred

in granting summary judgment for the United States, erroneously

concluding that “[b]ecause the video clearly shows the event in

question,      no     factual   dispute     exists.”       Tyree      maintains        that

there are disputed questions as to whether, first, she committed

any act of obstruction, and second, whether she had any criminal

intent to obstruct.

              We review a district court’s grant of summary judgment

de    novo,    drawing        reasonable    inferences         in    the    light      most

favorable to the non-moving party.                 United States v. Bergbauer,

602   F.3d     569,    574    (4th Cir.),       cert.   denied,      131    S.   Ct.    297

(2010).       Summary judgment may be granted only when “there is no

genuine      dispute     as    to   any   material      fact   and    the     movant     is



                                            3
entitled to judgment as a matter of law.”                      Fed. R. Civ. P.

56(a).

            Because Tyree brought this action under the FTCA, her

claims are governed by the law of Virginia, the state where the

alleged     malicious      prosecution        occurred.         See    28     U.S.C.

§ 1346(b)(1) (2006).         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).

            Virginia’s obstruction of justice statute provides:

       If any person without just cause knowingly obstructs .
       . . any law-enforcement officer . . . in the
       performance of his duties or fails or refuses without
       just cause to cease such obstruction when requested to
       do so by such . . . law-enforcement officer . . . he
       shall be guilty of a Class 1 misdemeanor.

Va. Code Ann. § 18.2-460(A) (2009).             Obstruction of justice does

not require physical interference with the officer, “‘but there

must be acts clearly indicating an intention on the part of the

accused    to    prevent   the     officer    from     performing     his    duty.’”

Ruckman v. Commonwealth, 505 S.E.2d 388, 389 (Va. App. 1998)

(quoting Jones v. Commonwealth, 126 S.E. 74, 77 (Va. 1925)).




                                         4
               Here,    the        facts    known       to     the       officer        concerning

Tyree’s    possible         obstruction          of    justice       are    depicted          in    the

video recording.            We conclude that these facts and circumstances

establish probable cause for obstruction of justice.

               Next, Tyree argues that the officer who obtained the

warrant    did    not       himself    believe         there    was       probable       cause      to

obtain a warrant.             She argues that further discovery of facts

“including       what       [the    officer]          knew    and     understood          when      he

obtained the criminal warrant against Tyree,” would be relevant

to the question of whether probable cause existed.                                 However, the

probable cause determination is an objective one, and the facts

relevant to that determination are depicted in the recording.

See    Devenpeck       v.    Alford,       543    U.S.       146,    153        (2004).        While

discovery into the officer’s subjective state of mind may have

relevance to the malice element of her malicious prosecution

claim,    “a    lack    of     probable      cause       may       not     be    inferred          from

malice.”        Reilly,       643     S.E.2d      at    219.         The    discovery          Tyree

requested       could       not     have    salvaged         her     claim        and     we       must

therefore conclude that the district court did not abuse its

discretion in denying her motion for discovery.                                   See Ingle ex

rel. Estate of Ingle, 439 F.3d 191, 195 (4th Cir. 2006).

               Accordingly, we affirm the district court’s judgment.

We    dispense    with       oral     argument        because       the     facts       and    legal



                                                 5
contentions are adequately presented in the materials before the

court and would not aid the decisional process.

                                                        AFFIRMED




                                6
