UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JANICE MAXINE MCCOY,
Plaintiff-Appellant,

v.

DAVID ROBINSON, Trooper; JAMES
VAUGHN, Lieutenant,
                                                               No. 97-2023
Defendants-Appellees,

and

WEST VIRGINIA REGIONAL JAIL AND
CORRECTIONAL FACILITY AUTHORITY,
Defendant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CA-96-105-5)

Submitted: December 9, 1997

Decided: January 14, 1998

Before WILLIAMS and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

David A. Jividen, James B. Stoneking, BORDAS, BORDAS & JIVI-
DEN, Wheeling, West Virginia, for Appellant. Karen E. Kahle,
STEPTOE & JOHNSON, Wheeling, West Virginia; Richard D. Kla-
ber, M. Suzanne McCartney, DICKIE, MCCAMEY, & CHILCOTE,
Wheeling, West Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Janice Maxine McCoy appeals the district court's order granting
summary judgment to Defendants Trooper D.L. Robinson and Lieu-
tenant James Vaughn on her claims under 42 U.S.C.§ 1983 (1994),
and on her state law claims of false arrest, malicious prosecution, and
intentional infliction of emotional distress. We affirm.

On June 12, 1995, McCoy went to the Northern Regional Jail in
Moundsville, West Virginia, to deliver clothes for inmate Marcus
Payton to wear in an upcoming court appearance. Upon arriving at the
jail McCoy handed the clothes to a correctional officer and proceeded
to the visitation area. While McCoy was visiting with Payton, the cor-
rectional officer found a small rock-like substance wrapped in cello-
phane in the pocket of a vest McCoy had brought for Payton.
Suspecting that the substance was crack cocaine, the officer contacted
Lieutenant Vaughn who then informed McCoy that her visit had been
terminated because she was suspected of bringing crack cocaine into
the jail. McCoy then left the visitors' booth and agreed to wait for the
arrival of West Virginia Public Safety Trooper D.L. Robinson.

Approximately an hour later Trooper Robinson arrived at the jail.
He made a physical inspection of the rock substance and determined
that it was crack cocaine. Vaughn then led McCoy to an interview
room where Robinson proceeded to ask her questions about the sub-
stance found in the vest pocket. Vaughn was not present for the ques-
tioning and had no further contact with McCoy after directing her to

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the interview room. Robinson learned from McCoy that she had
stopped at Payton's sister's house en route to the jail to pick up the
clothes. While at the house McCoy sorted through a bag of Payton's
clothing and selected a few items she thought would be appropriate
for Payton to wear to court. She then ironed the clothes and drove
directly to the jail. Based on this information Robinson believed he
had probable cause to arrest McCoy for transporting a controlled sub-
stance into a correctional facility in violation of W. Va. Code
§ 61-5-8(c) (1997). Accordingly, he mirandized McCoy and then he
and McCoy, each driving their own vehicle, traveled to the police sta-
tion.

On July 12, 1995, a magistrate judge dismissed the criminal com-
plaint against McCoy due to a defect in the complaint. Shortly there-
after Robinson learned that the West Virginia State Police forensic lab
had determined that the rock-like substance found in Payton's vest
pocket was not a controlled substance. Robinson then informed the
prosecutor's office of the lab results and the State did not refile
charges against McCoy. McCoy then filed suit under§ 1983 and West
Virginia state law alleging that the incident at the jail, her arrest, and
the unresolved drug charges have caused her to suffer severe depres-
sion and emotional distress.

This court reviews de novo a district court's grant of summary
judgment and affirms only if the record reveals no genuine issue of
material fact. See Shaw v. Stroud, 

, 798 (4th Cir. 1994).
A "genuine issue of material fact" exists when, viewed in the light
most favorable to the nonmovant, the evidence presents a sufficient
disagreement to require submission to a jury. See Anderson v. Liberty
Lobby, Inc., 

, 247-49 (1986). At summary judgment, all
issues of credibility are resolved in favor of the non-moving party.
See Miller v. Leathers, 

, 1087 (4th Cir. 1990).

To state a cognizable claim under § 1983, a plaintiff must demon-
strate a violation of a clearly established statutory or constitutional
right. See 42 U.S.C. § 1983 (1994). McCoy seeks to recover damages
from Robinson and Vaughn under § 1983 based on her detention and
warrantless arrest. Initially, we find that the district court properly
granted Vaughn's motion for summary judgment on McCoy's claims
under § 1983 because McCoy failed to establish that Vaughn violated

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a clearly established statutory or constitutional right. Vaughn's only
role in McCoy's arrest was to contact the state police and then to
escort McCoy to a room for questioning. McCoy admits that she vol-
untarily remained at the jail after Vaughn confronted her because she
wanted to speak with a police officer about the situation. She further
admits that Vaughn did not mistreat her in any way. Accordingly,
McCoy's failure to show that Vaughn violated a statutory or constitu-
tional right precludes recovery under § 1983.

We also find the district court properly granted Robinson's motion
for summary judgment on McCoy's claims under § 1983. There is no
cause of action for a false arrest under § 1983 unless the officer
lacked probable cause. See Street v. Surdyka, 

, 372-73
(4th Cir. 1974). Probable cause exists when the facts and circum-
stances within an officer's knowledge, and of which they had reason-
ably trustworthy information, are "sufficient to warrant a prudent man
in believing that the [individual] had committed or was committing
an offense." Beck v. Ohio, 

, 91 (1964); see also United
States v. Manbeck, 

, 376 (4th Cir. 1984). In this case,
Robinson arrived at the jail and a correctional officer informed him
that he had found a small rock-like substance wrapped in cellophane
inside an article of clothing that McCoy was delivering to inmate
Marcus Payton. Robinson had previously heard from other police
officers that Payton was a user and dealer of drugs. Both the correc-
tional officer and Robinson believed that the substance was crack
cocaine. Upon questioning McCoy, Robinson learned that the vest in
which the correctional officer found the substance had been in
McCoy's exclusive possession and control from the time she picked
up the vest until she arrived at the jail. We find that this information
was sufficient to warrant a reasonable belief that McCoy had acted in
violation of West Virginia Code § 61-5-8(c) by transporting a con-
trolled substance into a correctional facility. Hence we find that Rob-
inson had probable cause to arrest McCoy. As a result, the district
court did not err in granting Robinson's motion for summary judg-
ment.*
_________________________________________________________________
*Having found that McCoy cannot recover damages under § 1983
because there was no false arrest or imprisonment, we decline to address
whether Robinson and Vaughn are entitled to qualified immunity from
a suit for damages under § 1983.

                    4
To sustain her state law claim of false arrest or imprisonment,
McCoy must show that Defendants Robinson and Vaughn illegally
detained her without sufficient legal authority or justification. See
Riffe v. Armstrong, 

, 549 (W. Va. 1996). Our finding
that Robinson had probable cause, and therefore the legal authority,
to arrest McCoy forecloses her claim of false arrest against Robinson.
Further, McCoy's admission that she voluntarily remained at the jail
after Vaughn confronted her shows that Vaughn did not illegally
detain her. Hence, her false imprisonment claim against Vaughn is
also without merit.

Under West Virginia law an action for malicious prosecution
requires a plaintiff to show: (1) that the prosecution was set on foot
and conducted to its termination; (2) that the defendant caused or
procured the prosecution; (3) that it was without probable cause; and
(4) that it was malicious. See Hines v. Hills Dep't Stores, Inc., 

, 390 (W. Va. 1994). Failure to prove any of these ele-
ments precludes recovery. See 

probable
cause to arrest McCoy and McCoy has put forth no evidence showing
that either Robinson or Vaughn acted with malice, her malicious pro-
section claim cannot be sustained as a matter of law.

Finally, we find that the district court properly granted the Defen-
dants' motions for summary judgment on McCoy's claim of inten-
tional infliction of emotional distress. In West Virginia, the
intentional infliction of emotional distress is committed by "`[o]ne
who by extreme and outrageous conduct intentionally or recklessly
causes severe emotional distress to another.'" 

Harless v. First National Bank, 

(W. Va. 1982)).
Moreover, "the law intervenes only where the distress is so severe
that no reasonable [person] could be expected to endure it." 

marks omitted) (alteration in original). Based on the
record at summary judgment, no reasonable jury could conclude that
either Robinson or Vaughn engaged in the type of extreme and outra-
geous conduct necessary to sustain a claim of intentional infliction of
emotional distress. See 

(holding that sum-
mary judgment is appropriate "if the evidence is such that a reason-
able jury could [not] return a verdict for the nonmoving party").
Robinson arrested McCoy based on the reasonable belief that she had
acted in violation of state law. He then questioned McCoy in accor-

                    5
dance with standard police procedures. Such conduct is neither
extreme nor outrageous. Further, McCoy admitted at her deposition
that Vaughn had not mistreated her. Accordingly, McCoy's claim of
intentional infliction of emotional distress is without merit.

We therefore affirm the district court order granting summary judg-
ment to Defendants Robinson and Vaughn on McCoy's claims. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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