UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

OCTAVIA MARIE EATON,

Plaintiff-Appellant,

v.

No. 96-2518

PARAMOUNT PARKS, INCORPORATED,

d/b/a Kings Dominion, a/k/a

Paramount Kings Dominion,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Richard L. Williams, Senior District Judge.

(CA-96-291-R)

Argued: March 6, 1998

Decided: April 6, 1998

Before WIDENER and WILKINS, Circuit Judges, and

MOON, United States District Judge for the

Western District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Clarence Mosley Dunnaville, Jr., HILL, TUCKER &

MARSH, Richmond, Virginia, for Appellant. Steven Colin McCallum, MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Richmond, Virginia, for Appellee. ON BRIEF: Renee L. Fleisher,
COHEN & DWIN, P.A., Baltimore, Maryland; Robert E. Walker, Jr.,

JOHNSON & WALKER, Richmond, Virginia, for Appellant. Charles

G. Meyer, III, MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P.,

Richmond, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Octavia Marie Eaton appeals an order of the district court granting

summary judgment in favor of Paramount Parks, Incorporated (Paramount) on Eaton's claims arising from Paramount's detention, arrest,

and prosecution of her for allegedly forging and uttering fraudulent

checks at Paramount's Kings Dominion theme park (the park). Finding no error, we affirm.

I.

Eaton, a 420-pound black woman, was detained by Paramount

security guards after four Paramount employees positively identified

her as the woman who had entered the park six days earlier and written two fraudulent checks totalling more than $650 under the name

of "Catherine May." After interviewing Eaton and the four employees, a Paramount security officer, who was also a deputized officer of

the Hanover County, Virginia Sheriff's Department, detained Eaton

and eventually took her to the Hanover County Jail.

The following day, after hearing testimony from the four employees, a magistrate found probable cause to issue warrants for Eaton's

arrest for grand larceny, forgery, and uttering false checks. A grand

jury also found probable cause to indict Eaton on those charges. At

Eaton's trial, however, a Hanover County court dismissed the

charges, ruling that the Commonwealth had not established Eaton's

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guilt beyond a reasonable doubt.1 Eaton then brought this action

against Paramount, alleging common-law claims for false

imprisonment,2 malicious prosecution, intentional infliction of emotional distress, and battery and a statutory claim for insulting words,

see Va. Code Ann. § 8.01-45 (Michie 1992). The district court

granted summary judgment against Eaton on all of her claims, and she

now appeals.

II.

Eaton first argues that the district court erred in granting summary

judgment against her on the common-law claims on the basis that

there was no genuine issue of fact regarding whether Paramount had

probable cause to suspect her of the crimes she was alleged to have

committed.3 Eaton contends that whether Paramount had probable

cause to suspect her was a jury issue. We disagree.

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1 During the same time period in which Eaton allegedly uttered the

fraudulent checks, two other women were identified as having passed

fraudulent checks under the name of "Catherine May." The court noted

that an identification card recovered from one of the other suspects had

the same social security number that was written on the checks Eaton

was alleged to have uttered. Additionally, the court believed that the witnesses might have confused Eaton with the woman pictured on the identification card. Moreover, handwriting tests of Eaton were inconclusive,

and she had several alibi witnesses.

2 Eaton also asserted a cause of action for false arrest, which in Virginia

is the same tort as false imprisonment. See Motley v. Virginia Hardware

& Mfg. Co., 287 F. Supp. 790, 792 (W.D. Va. 1968).

3 To prove false imprisonment, Eaton must demonstrate that she was

arrested without lawful process, see S. H. Kress & Co. v. Roberts, 129

S.E. 244, 246 (Va. 1925), and Eaton contends that her arrest was unlawful only because Paramount lacked probable cause. Furthermore, absence

of probable cause is an element of the tort of malicious prosecution. See

Gaut v. Pyles, 181 S.E.2d 645, 646-47 (Va. 1971). And, the initiation of

criminal proceedings when there is probable cause to do so cannot constitute the intentional infliction of emotional distress. See Lewis v. First

Nat'l Bank of Stuart, 645 F. Supp. 1499, 1506 (W.D. Va. 1986), aff'd,

818 F.2d 861 (4th Cir. 1987) (unpublished table decision) (per curiam).

Finally, the touching accompanying Eaton's arrest would not be unlawful

--and hence would not constitute a battery, see Wood v. Commonwealth,

140 S.E. 114, 115 (Va. 1927)--if the arrest was supported by probable

cause.

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Summary judgment is appropriate when "there is no genuine issue

as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). We review an order

granting summary judgment de novo. See Becerra v. Dalton, 94 F.3d

145, 148 (4th Cir. 1996), cert. denied, 117 S. Ct. 1087 (1997).

"Probable cause is knowledge of such a state of facts and circumstances as excite the belief in a reasonable mind, acting on such facts

and circumstances, that the plaintiff is guilty of the crime of which he

is suspected." Giant of Va., Inc. v. Pigg, 152 S.E.2d 271, 275 (Va.

1967) (internal quotation marks omitted). In evaluating whether Paramount had probable cause to take action against Eaton, "the court

must look only to the time when the action complained of occurred."

Chipouras v. AJ&L Corp., 290 S.E.2d 859, 862 (Va. 1982).

Here, at the time of the acts complained of, Paramount most certainly had a reasonable basis for believing Eaton had passed the

fraudulent checks at issue because four employees identified Eaton in

no uncertain terms. Accordingly, the district court properly granted

summary judgment regarding all of these claims.

III.

Eaton also contends that the district court erred in granting summary judgment against her on her statutory claim for insulting words.

We disagree.

In order to prove a cause of action for insulting words, a plaintiff

must establish that the defendant's words "from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace." Va. Code Ann.§ 8.01-45. Here, Eaton

has never specified exactly what insulting words she alleges were

spoken to her. And, to the extent that her claim refers to the officers'

explanation for why she was being detained, such an explanation

under those circumstances would most certainly not"tend to violence

and breach of the peace." Id. Accordingly, the district court correctly

granted summary judgment against Eaton on this claim as well.4

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4 Because we affirm the grant of summary judgment against Eaton, we

conclude that her contention that venue was improperly transferred is

moot.

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IV.

In sum, we affirm the order of the district court granting summary

judgment against Eaton on all of her claims.

AFFIRMED

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