Jeremiah Henderson v. Wal-Mart Stores, Inc. ( 2023 )

USCA4 Appeal: 21-2417 Doc: 29 Filed: 01/12/2023 Pg: 1 of 13
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-2417
JEREMIAH HENDERSON,
Plaintiff - Appellant,
and
SHANE M. JENKINS, on behalf of himself and others similarly situated,
Plaintiff,
v.
WAL-MART STORES, INC.,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Raymond A. Jackson, Senior District Judge. (2:19-cv-00271-RAJ-LRL)
Submitted: November 3, 2022 Decided: January 12, 2023
Before THACKER AND QUATTLEBAUM, Circuit Judges, and MOTZ, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Gary M. Bowman, Roanoke, Virginia, for Appellant. James E. Tysse,
Anthony T. Pierce, Nathan J. Oleson, Kristen E. Loveland, AKIN GUMP STRAUSS
HAUER & FELD LLP, Washington, D.C., for Appellee.
USCA4 Appeal: 21-2417 Doc: 29 Filed: 01/12/2023 Pg: 2 of 13
Unpublished opinions are not binding precedent in this circuit.
2
USCA4 Appeal: 21-2417 Doc: 29 Filed: 01/12/2023 Pg: 3 of 13
PER CURIAM:
Jeremiah Henderson (“Appellant”) appeals the district court’s dismissal of his
complaint, in which he alleged that employees of Wal-Mart Stores, Inc. (“Appellee”)
subjected him to false imprisonment by placing a hand on Appellant’s shopping cart and
requesting to see Appellant’s receipt as he exited the store. Appellant also sought a
declaration that Appellee’s alleged practice of requiring individuals to show their receipt
before leaving a store, without probable cause, was unlawful because it violated Virginia’s
Shopkeeper’s Privilege laws. The district court granted Appellee’s motion to dismiss both
claims for failure to state a claim upon which relief can be granted. For the reasons that
follow, we affirm.
I.
When reviewing a district court’s grant of a motion to dismiss, we “accept as true
all well-pleaded facts in [the] complaint.” Matherly v. Andrews, 859 F.3d 264, 274 (4th
Cir. 2017).
On October 15, 2018, Appellant -- a 77 year old man suffering from several health
conditions, including chronic obstructive pulmonary disease -- patroned a Wal-Mart store
located on Valley View Boulevard in Roanoke, Virginia. Appellant, who allegedly paid
for all of the items in his shopping cart, was exiting the store when a store associate,
Jeannette Wheeler (“Wheeler”), stopped him, held onto his shopping cart, and asked to see
his receipt. When Appellant failed to produce his receipt, Wheeler requested assistance
over the store’s intercom system. A second Wal-Mart employee, Thomas Christopher
Shelton (“Shelton”), came to the front of the store. Shelton stood in front of Appellant,
3
USCA4 Appeal: 21-2417 Doc: 29 Filed: 01/12/2023 Pg: 4 of 13
separated Appellant from his cart, and then told an on-site police officer, Austin K.
McClain (“McClain”), that he wanted Appellant “out of the store.” J.A. 19 ¶ 29. 1
This case was initially brought on May 23, 2019, when Shane Jenkins (“Jenkins”)
filed a pro se complaint, on his own behalf and on behalf of a putative class, against
Appellee. In his original complaint, Jenkins alleged class action federal discrimination
claims on the basis of race and disability, as well as various state law claims brought in his
individual capacity, including for defamation, negligence, assault, conversion, and false
imprisonment. The district court granted Jenkins leave to file an Amended Complaint.
Jenkins retained counsel, who then filed an Amended Complaint on behalf of Jenkins and
Appellant.
In Count One of the Amended Complaint, Jenkins and Appellant sought, as
representatives of a putative class, a declaratory judgment that Appellee’s practice of
requesting receipts from customers without probable cause of shoplifting is unlawful false
imprisonment that is not protected by either the “Shopkeeper’s Privilege” of Va. Code
§ 8.01-226.9 or Va. Code § 18.2-105.1.2, which provides that Virginia merchants are
exempt from civil liability for claims of false imprisonment if probable cause exists for the
detention and it lasts no more than an hour. Jenkins and Appellant also sought individual
damages for the same claim in Counts Two (Jenkins) and Eight (Appellant) (collectively
with Count One, the “Shopkeeper’s Privilege Claims”). Based on the above allegations,
1
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
4
USCA4 Appeal: 21-2417 Doc: 29 Filed: 01/12/2023 Pg: 5 of 13
Appellant also brought several individual state-law tort claims against Appellee for false
imprisonment and negligence.
On April 17, 2020, pursuant to Federal Rules of Civil Procedure 8 and 12(b)(6),
Appellee moved to dismiss the Shopkeeper’s Privilege Claims, Jenkins’ defamation and
negligence claims, and both of Appellant’s tort claims. The district court granted
Appellee’s motion to dismiss. Relevant here, the district court held that Appellant’s false
imprisonment claim should be dismissed based on Va. Code § 18.2-105.1. The district
court determined that, as a matter of law, Appellant’s allegations demonstrated that
Appellee’s employees had probable cause to believe Appellant was shoplifting due to his
refusal to produce a receipt for the items in his shopping cart. Appellant also failed to
allege that he was detained for an hour or more.
The district court also dismissed the Shopkeeper’s Privilege Claims. Jenkins and
Appellant argued that Va. Code § 18.2-105.1 combined with Va. Code § 8.01-226.9
implied a cause of action for a statutory tort Appellant called “unlawful detention.” Mem.
Op. Mot. to Dismiss at 4–18, Jenkins v. Wal-Mart Stores, Inc., No. 2:19-cv-00271 (E.D.
Va. May 23, 2019; filed May 1, 2020), ECF No. 24. But the district court determined that
those laws do not expressly provide a right of action against a retailer and no such right of
action has been recognized by Virginia courts. Rather, the district court held that Virginia’s
Shopkeeper’s Privilege laws establish only a defense for Appellee and other merchants
against recognize torts, such as false imprisonment or negligence, and demarcate the limits
of that defense. Accordingly, the district court dismissed both Jenkins’ and Appellant’s
individual damages claims and their request for declaratory judgment.
5
USCA4 Appeal: 21-2417 Doc: 29 Filed: 01/12/2023 Pg: 6 of 13
Appellant filed this timely appeal. 2
II.
“We review de novo the grant of a motion to dismiss for failure to state a claim.”
Garnett v. Remedi Seniorcare of Va., LLC, 892 F.3d 140, 142 (4th Cir. 2018). We review
a district court’s decision to decline to exercise its jurisdiction to issue a declaratory
judgment for abuse of discretion. Wilton v. Seven Falls Co., 15 U.S. 277, 289–90 (1995).
III.
A.
A complaint may survive a motion to dismiss only if it “states a plausible claim for
relief” that “permit[s] the court to infer more than the mere possibility of misconduct”
based on “its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). Under Virginia law, false imprisonment constitutes the “restraint of one’s liberty
without any sufficient cause therefor.” Zayre of Va., Inc. v. Gowdy, 147 S.E.2d 710, 713
(Va. 1966). While a person need not “be confined in jail or placed in the custody of an
officer” to experience false imprisonment, a person must at least be “under a reasonable
apprehension that force will be used unless he willingly submits.” Id.Nevertheless, Virginia’s Shopkeeper’s Privilege laws entitle merchants to an
exemption from civil liability, including for claims of false imprisonment, if probable cause
2
Appellee did not move to dismiss Jenkins’ claims for false imprisonment, assault
and battery, and conversion. Those claims were tried before a jury and are not at issue on
this appeal. We note that final judgment was entered in this case on December 6, 2021
following that trial. Henderson noted his appeal as to the May 2020 order dismissing his
claims and the final judgment of December 6, 2021.
6
USCA4 Appeal: 21-2417 Doc: 29 Filed: 01/12/2023 Pg: 7 of 13
exists for the restraint and detention of a customer. Tweedy v. J.C. Penney Co., Inc., 221
S.E.2d 152, 155 (Va. 1976) (citing F.B.C. Stores v. Duncan, 198 S.E.2d 595 (Va. 1973)).
The first Shopkeeper’s Privilege law permits a merchant to detain a potential shoplifter
upon probable cause:
A merchant, agent or employee of the merchant, who has
probable cause to believe that a person has shoplifted . . . may
detain such person for a period not to exceed one hour pending
arrival of a law-enforcement officer.
Va. Code § 18.2-105.1. The second law exempts such a merchant from civil liability for
“false imprisonment”:
A merchant, agent or employee of the merchant, who causes
the arrest or detention of any person . . . shall not be held civilly
liable for . . . false imprisonment . . . provided that, in causing
the arrest or detention of such person, the merchant, agent or
employee of the merchant, had at the time of such arrest or
detention probable cause to believe that the person had
shoplifted or committed willful concealment of goods or
merchandise.
Va. Code § 8.01-226.9. Together, these laws exempt a merchant from civil liability for
false imprisonment if (1) the detention lasts less than an hour; and (2) the merchant had
probable cause to detain. See Tweedy, 221 S.E.2d at 155.
The “‘scope of the [Shopkeeper’s Privilege] exemption intended by the [Virginia]
General Assembly [is] very broad,’” thus, an “expansive rather than restrictive scope [is
given] to the probable cause defense.” Brandau v. J. C. Penney Co., Inc., 646 F.2d 128,
131 (4th Cir. 1981) (quoting F.B.C. Stores, 198 S.E.2d at 598). Accordingly, in
determining whether a merchant had probable cause to detain an individual, courts ask only
7
USCA4 Appeal: 21-2417 Doc: 29 Filed: 01/12/2023 Pg: 8 of 13
whether “an ordinarily prudent person” would have acted as the merchant did under the
circumstances. F.B.C. Stores, 198 S.E.2d at 599; see also Tweedy, 221 S.E.2d at 155.
Here, Appellant failed to state a claim for false imprisonment because he failed to
allege that the employees placed him “under a reasonable apprehension that force [would]
be used” against him if he tried to leave the store. See Zayre, 147 S.E.2d at 713. Appellant
has not alleged that Wheeler ever physically prevented him from leaving the store, that she
threatened to restrain him if he tried to leave, or that she told him he was not free to go.
The Amended Complaint alleges only that Wheeler asked to see Appellant’s receipt and,
while doing so, held on to Appellant shopping cart. Objectively, a mere request to see a
receipt could not have made Appellant reasonably afraid that he would be forcibly
restrained if he tried to leave. For instance, in Anderson v. Wal-Mart Stores, Inc., the
district court concluded that the plaintiff was not falsely arrested or imprisoned when an
officer “only sought to get [the plaintiff] to provide a receipt for her purchases.” No. 12-
cv-61047, 2013 WL 773473, at *10 (S.D. Fla. Feb. 28, 2013). Similarly, as the Eleventh
Circuit recently held, the placing of a store employee’s hands on a shopping cart does not
by itself rise to the level of false imprisonment. See Archer v. City of Winter Haven, 846
F. App’x 759, 765 (11th Cir. 2021) (concluding that plaintiff was not falsely imprisoned
when store employee “placed his hands on [plaintiff’s] cart when [plaintiff] tried to leave
the store with [a] television”).
Appellant’s allegations against Shelton fail for similar reasons. In total, Appellant
alleges that Shelton took just three actions: (1) Shelton “stood in front of” Appellant; (2)
Shelton “forced” Appellant away from his shopping cart; and (3) as Shelton “started to
8
USCA4 Appeal: 21-2417 Doc: 29 Filed: 01/12/2023 Pg: 9 of 13
walk away,” he told Officer McClain that he wanted Appellant “out of the store.” J.A. 18
¶¶ 27–29; 34 ¶ 111. Objectively, none of these actions could have given Appellant reason
to fear that Shelton would use force against him if he tried to leave. Although Appellant
alleged that by standing in front of him, Shelton prevented [Appellant from leaving],”
Appellant failed to allege why such an action placed him “under a reasonable
apprehension” that Shelton would use force to restrain appellant if Appellant attempted to
leave. Appellant has not alleged that Shelton made any threats or took any menacing action
toward him, other than standing in front of him, or that Shelton sought to physically accost
Appellant in any way. Rather, the Amended Complaint establishes that Shelton wanted to
get Appellant “out of the store,” not keep him there. Virginia law does not “recognize a
cause of action for false imprisonment simply for telling a person to ‘get out.’” Kirven v.
Super Fresh Food Mkts., No. LC-3041-4, 1998 WL 972137, at *2 (Va. Cir. Mar. 17, 1998).
And Appellant’s further allegation that he was the one who “reached out with his hand to
Shelton to get Shelton’s attention as [Shelton] walked away,” J.A. 19 ¶ 30, demonstrates
that Appellant did not have any fear -- reasonable or not -- that Shelton would try to
forcefully restrain him.
In any event, even if Appellant successfully stated a claim for false imprisonment,
Appellant’s allegations nonetheless fall within the scope of Virginia’s Shopkeeper’s
Privilege. First, Appellant failed to allege that he was detained for more than an hour
before the “arrival of a law-enforcement officer.” Va. Code § 18.2-105.1. According to
the complaint, Officer McClain already “was at [the store] when [Appellant] was stopped
by [Wheeler].” J.A. 19 ¶ 29.
9
USCA4 Appeal: 21-2417 Doc: 29 Filed: 01/12/2023 Pg: 10 of 13
Second, Appellant’s allegations underscore that the store employees had probable
cause to believe Appellant had shoplifted and that the employees acted as ordinarily
prudent people would have acted under the circumstances. Appellant alleged that, when
asked, he did not timely produce a receipt for the goods he was wheeling out of the store.
Appellant did not allege that he gave any indication that he was searching for the receipt
in his pocket or wallet, that he would have produced a receipt shortly, or that he ever did
produce a receipt over the course of the entire encounter. See Est. Constr. Co. v. Miller &
Smith Holding Co., 14 F.3d 213, 221 (4th Cir. 1994) (“[I]t is not . . . proper to assume that
the plaintiff can prove facts that he has not alleged or that the defendants have violated the
. . . law in ways that have not been alleged.” (internal quotation marks, alterations, and
citation omitted)). Thus, Appellant’s failure to produce a receipt for items he was
attempting to carry out of the store constitutes probable cause, and any “ordinarily prudent
person” would have sought to prevent a cart of potentially stolen goods from leaving the
store.
In his briefing, Appellant focuses his claim of false imprisonment on those few
moments between when Wheeler first requested to see Appellant’s receipt and when he
failed to produce one. However, the Amended Complaint says very little about what
happened during those few moments aside from alleging that Wheeler “stopped
[Appellant], held on to his shopping cart, and asked to see his receipt.” J.A. 18 ¶ 25. As
discussed above, none of these allegations establish that Appellant reasonably feared that
Wheeler would forcefully confine him during that brief interlude. Thus, Appellee is
exempt from liability under Virginia’s Shopkeeper’s Privilege laws.
10
USCA4 Appeal: 21-2417 Doc: 29 Filed: 01/12/2023 Pg: 11 of 13
In essence, Appellee gave Appellant three choices: Appellant could have produced
a receipt and left; he could have abandoned the shopping cart items and left; or he could
have done neither and stayed. But having a choice between staying put and leaving without
the items in a shopping cart simply does not rise to the level of forced confinement. See,
e.g., Archer, 846 F. App’x at 765 (“[Customer] could have left the store and escaped any
confinement by either showing [store employee] his receipt or leaving the store without his
television, which he eventually did. Accordingly, . . . [Customer] did not [experience] false
imprisonment.”). Therefore, the district court err by concluding that Appellant failed to
state a claim for false imprisonment, and this court should affirm its order dismissing
Appellant’s false imprisonment claim.
B.
“A request for declaratory relief is barred to the same extent that the claim for
substantive relief on which it is based would be barred.” CGM, LLC v. BellSouth
Telecomms., Inc., 664 F.3d 46, 55–56 (4th Cir. 2011).
Here, along with his claim of false imprisonment, Appellant sought a declaratory
judgment that Appellee’s alleged practice of “requiring [individuals] to show their receipt
before leaving” a store, without probable cause, “is unlawful because it violates Va. Code
§ 18.2-105.1,” one of Virginia’s Shopkeeper’s Privilege laws. J.A. 22 ¶ 39. Appellant also
brought a substantive claim for damages under the same Shopkeeper’s Privilege theory.
Appellant now appeals the dismissal of only the declaratory judgment claim, not his
damages claim.
11
USCA4 Appeal: 21-2417 Doc: 29 Filed: 01/12/2023 Pg: 12 of 13
Below, the district court determined that while § 18.2-105.1 protects merchants
from civil liability within certain limits, it does not provide a private right of action for the
breach of those limits. “In Virginia, a private right of action to enforce a statute must be
expressly created by that statute.” Va. Auto. Dealer’s Ass’n v. Tesla Motors, Inc., 94 Va.
Cir. 269, 275 (2016) (collecting cases); see also Cherrie v. Va. Health Servs., Inc., 787
S.E.2d 855, 858 (Va. 2016) (“We would never infer a ‘private right of action’ based solely
on a bare allegation of a statutory violation.”). Therefore, because Appellant failed to plead
a substantive tort under Virginia law, the district court properly dismissed Appellant’s
damages claim and did not abuse its discretion when it declined, on a class-wide basis, “to
issue declaratory judgments to create a new civil remedy that has not been previously
recognized by Virginia courts.” J.A. 67.
On appeal, Appellant attempts to recast his claim as one seeking declaratory
judgment as to whether Appellee’s alleged practice of requesting receipts, in the abstract,
constitutes false imprisonment. However, for the reasons discussed above, Appellant
failed to state a claim for false imprisonment. Because Appellant’s false imprisonment
claim fails on the merits, any associated claim for declaratory relief must fail with it. See
CGM, 664 F.3d at 55–56. Therefore, the district court did not abuse its discretion in
prohibiting Appellant from pursuing relief on behalf of a class after dismissing Appellant’s
underlying substantive claim.
IV.
For the foregoing reasons, we affirm the district court’s grant of the Appellee’s
motion to dismiss. We dispense with oral argument because the facts and legal contentions
12
USCA4 Appeal: 21-2417 Doc: 29 Filed: 01/12/2023 Pg: 13 of 13
are adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED
13