UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished 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Unpublished opinions are not binding precedent in this circuit.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

 1 Citations to “J.A. __” refer to the Joint Appendix filed 

by the parties in this appeal.
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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.

 
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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 
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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 wellestablished. 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 
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“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), 
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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