Michael Palmer v. Richard Robbins, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10433
Non-Argument Calendar
____________________
MICHAEL PALMER,
Plaintiff-Appellant,
versus
RICHARD ROBBINS,
JAMES WINSTON,
CHRISTOPHER MCBRIDE,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
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2 Opinion of the Court 23-10433
D.C. Docket No. 4:19-cv-00167-RSB-CLR
____________________
Before JORDAN, BRANCH and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Michael Palmer appeals the district court’s order
denying his supplemental motion for new trial. While working at
Herty Advanced Materials Development Center (“Herty”), Palmer
was arrested and charged in a criminal prosecution for allegedly
stealing gas from Herty’s gas pumps. Herty is a research and
development center located in Savannah, Georgia, and a division
of Georgia Southern University. Herty installed a surveillance
camera at the gas pumps, and it recorded the alleged theft. After
authorities dismissed Palmer’s criminal prosecution, Palmer filed
suit against Richard Robbins, plant manager at Herty, Christopher
McBride, Georgia Southern University police officer, and James
Winston, a team leader/supervisor at Herty, alleging that they
maliciously prosecuted him in violation of his Fourth Amendment
rights. The district court granted summary judgment to McBride
and Winston based on immunity, and the case proceeded to trial
on the sole issue of whether Robbins caused Palmer’s criminal
prosecution. The jury entered a verdict in favor of Robbins, and
the district court denied Palmer’s supplemental motion for new
trial. After reviewing the record and reading the parties’ briefs, we
affirm the district court’s order.
I.
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23-10433 Opinion of the Court 3
We review for abuse of discretion a district court’s order
denying a motion for new trial. Chmielewski v. City of St. Pete Beach,
890 F.3d 942, 951 (11th Cir. 2018). Because Palmer failed to move
for a directed verdict at trial, “our inquiry is limited to whether
there was any evidence to support the jury’s verdict, irrespective of
its sufficiency.” Hercaire Int’l, Inc. v. Arg., 821 F.2d 559, 562 (11th Cir.
1987) (quotations omitted).
We review de novo a district court’s order granting summary
judgment based on qualified immunity. See Rowe v. Schreiber, 139
F.3d 1381, 1383 (11th Cir. 1998).
II.
We must determine whether we have jurisdiction to review
the district court’s grant of summary judgment to Officer McBride
based on qualified immunity, and to Winston based on state law
immunity. Palmer contends that under Federal Rule of Appellate
Procedure 3, we do have jurisdiction because the notice of appeal
encompasses the district court’s grant of summary judgment.
Robbins contends that we do not have jurisdiction because the
notice of appeal specified only the district court’s order on the
motion for new trial.
Rule 3 of the Federal Rules of Appellate Procedure provides
that the notice of appeal must “designate the judgment — or the
appealable order — from which the appeal is taken.” F.R.A.P.
3(c)(1). The rule further states in part that the notice of appeal
“encompasses all orders that, for purposes of appeal, merge into
the designated judgment or appealable order.” Id. at 3(c)(4). “It is
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4 Opinion of the Court 23-10433
not necessary to designate those orders in the notice of appeal.” Id.
The rule also provides in part that “a notice of appeal encompasses
the final judgment, whether or not that judgment is set out in a
separate document under Federal Rule of Civil Procedure 58, if the
notice designates: (A) an order that adjudicates all remaining claims
and the rights and liabilities of all remaining parties; or (B) an order
described in Rule 4(a)(4)(A).” Id.at 3(c)(5). Finally, Rule 3(c)(6)
provides that “[a]n appellant may designate only part of a judgment
or appealable order by expressly stating that the notice of appeal is
so limited. Without such an express statement, specific
designations do not limit the scope of the notice of appeal.” Under
the Rule, we conclude that the summary judgment order is
encompassed within the appealable order, and we have jurisdiction
to review it.
A. Officer McBride
Palmer asserted a federal malicious prosecution claim
against Officer McBride, and Officer McBride moved for summary
judgment, arguing that there was no evidence that he caused any
seizure of Palmer that violated the Fourth Amendment; that
Palmer’s arrest was supported by probable cause or, at minimum,
arguable probable cause; and that he did not institute or continue
the criminal prosecution against Palmer or unduly influence the
decision to prosecute. The district court concluded that Palmer did
not prove his claim of malicious prosecution, and that Officer
McBride was entitled to qualified immunity. Based on our review,
we agree with the district court.
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23-10433 Opinion of the Court 5
To succeed on a claim of malicious prosecution, Palmer
must prove a violation of his Fourth Amendment right to be free
from unreasonable seizures and the elements of the common law
tort of malicious prosecution. Williams v. Aguirre, 965 F.3d 1147,
1157 (11th Cir. 2020). These tort elements include “(1) a criminal
prosecution instituted or continued by the present defendant; (2)
with malice and without probable cause; (3) that terminated in the
plaintiff accused’s favor; and (4) caused damage to the plaintiff
accused.” Wood v. Kesler, 323 F.3d 872, 882 (11th Cir. 2003). Palmer
must also produce evidence to prove that he was seized in violation
of his constitutional rights. See Kingsland v. City of Miami, 382 F.3d
1220, 1235 (11th Cir. 2004). An arrest is a seizure of the person, and
“the reasonableness of an arrest is . . . determined by the presence
or absence of probable cause for the arrest.” Skop v. City of Atlanta,
485 F.3d 1130, 1137 (11th Cir. 2007). Stated differently, “the
existence of probable cause” for an arrest warrant “defeats a § 1983
malicious prosecution claim.” Grider v. City of Auburn, 618 F. 3d
1240, 1256 (11th Cir. 2010).
Moreover, qualified immunity protects government officials
performing discretionary functions from personal liability if their
conduct “does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738
(1982)). To rely upon qualified immunity, Officer McBride must
show that he acted within his discretionary authority, i.e., he was
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6 Opinion of the Court 23-10433
“performing a legitimate job-related function . . . through means
that were within his power to utilize.” Holloman ex rel. Hollomon v.
Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). The record
demonstrates that Officer McBride was performing a legitimate job
function through permissible means when he investigated the gas
theft at Herty.
We next consider whether Palmer proved a violation of his
constitutional rights by Officer McBride that were clearly
established at the time of the incident. See Keating v. City of Miami,
598 F.3d 753, 762 (11th Cir. 2010). To prove that he was seized in
violation of his Fourth Amendment rights, Palmer must establish
(1) that the legal process justifying his seizure “was constitutionally
infirm;” and (2) “that his seizure would not otherwise be justified
without legal process.” Williams, 965 F.3d at 1165. Palmer “can
prove that his arrest warrant was constitutionally infirm if he
establishes either that the officer who applied for the warrant
should have known that his application failed to establish probable
cause, or that an official, including an individual who did not apply
for the warrant, intentionally or recklessly made misstatements or
omissions necessary to support the warrant.” Id. (internal citations
omitted).
We conclude that, based on the record, Palmer did not
satisfy his burden of proof. Contrary to Palmer’s assertions, there
is no record evidence that Robbins lied to Officer McBride when he
identified Palmer in the video, and Palmer admitted in his
deposition that there was no evidence that Officer McBride knew
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23-10433 Opinion of the Court 7
about the lies perpetuated by Robbins. In addition, there is nothing
in the record to indicate that Officer McBride made an intentional
or reckless misstatement or omission necessary to obtain the arrest
warrant. Rather, the record shows that Officer McBride
investigated the gasoline theft, created a case file, gave that case file
to a police officer, and that officer secured the arrest warrant.
There is no evidence that Officer McBride was responsible for the
decision to prosecute or arrest Palmer. Thus, Palmer did not show
that Officer McBride caused him to be seized in violation of his
Fourth Amendment right.
Based on the record, we also conclude that probable cause,
or at least, arguable probable cause, existed for the issuance of the
arrest warrant and Palmer’s arrest. “We have not always
consistently articulated the probable-cause standard in the context
of arrests.” Washington v. Howard, 25 F.4th 891, 898 (11th Cir. 2022).
Relying on the Supreme Court’s explanation, we stated recently
that probable cause “exists when the facts, considering the totality
of the circumstances and viewed from the perspective of a
reasonable officer, establish ‘a probability or substantial chance of
criminal activity.’” Id. (quoting District of Columbia v. Wesby, 583
U.S. 48, 57, 138 S. Ct. 577, 586 (2018)). Thus, on review, a court
must inquire “whether a reasonable officer could conclude . . . that
there was a substantial chance of criminal activity.” Id. at 899
(emphasis added) (quoting Wesby, 583 U.S. at 61, 138 S. Ct. at 588).
Here, two of Palmer’s supervisors, Robbins and Winston,
identified Palmer in the video, based on their numerous years
working with Palmer, his physical characteristics, the truck he
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8 Opinion of the Court 23-10433
drove, and his mannerisms. Thus, a reasonable officer, possessing
the same information as Officer McBride, could conclude that
Robbins and Winston’s identifications of Palmer were reliable, and
that there was a substantial chance or probability that Palmer was
involved in criminal activity. Office McBride himself observed that
Palmer drove a truck like the one depicted in the video.
Considering the totality of the circumstances, we affirm the district
court’s grant of summary judgment to Officer McBride.
B. James Winston
Palmer alleges a state law malicious prosecution claim
against Winston pursuant to O.C.G.A. § 51-7-40, and Winston
asserts official immunity pursuant to the Georgia Tort Claims Act,
O.C.G.A. § 50-21-20, et seq. (“GTCA”). Winston relies on his role
as team leader and supervisor to assert that his identification of
Palmer was committed within the scope of his employment. The
district court found that Winston was entitled to summary
judgment based on immunity. Based on our review, we agree with
the district court.
Under the GTCA, “[a] state officer or employee who
commits a tort while acting within the scope of his or her official
duties or employment is not subject to lawsuit or liability.”
O.C.G.A. § 50-21-25(a). However, the Act does not give a state
officer or employee immunity from suit and liability if a plaintiff
can prove that the officer or employee’s conduct was not within the
scope of his or her official duties or employment. Riddle v. Ashe,
495 S.E.2d 287, 288 (Ga. 1998). (internal quotation marks omitted).
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23-10433 Opinion of the Court 9
To determine whether the employee acted within the scope of his
authority, the court must examine whether the employee was
“performing the regular duties of [his] employment, during [his]
regular hours of employment, at [his] regular site of employment.
Shekhawat v. Jones, 746 S.E.2d 89, 93 (Ga. 2013).
Based on the record, we conclude that the district court
properly granted Winston immunity. First, Winston was acting
within the scope of his employment when he identified Palmer as
the suspect in the video. Winston was the team leader and
supervised 12 to 15 Herty employees, including Palmer. Winston
was performing his duties during the regular work hours at his
normal place of business when he identified Palmer as a suspect.
Further, Winston had a duty, pursuant to University policy, to
investigate and report any employee misconduct of which he was
aware. See Massey v. Roth, 290 Ga. App. 496, 499 (Ga. Ct. App. 2008)
(“Actions taken by employees to . . . enforce university policies can
reasonably be construed as actuated by a purpose to serve the
employer, and thus fall within the scope of their employment.”).
Accordingly, we affirm the district court’s grant of summary
judgment to Winston on Palmer’s state malicious prosecution
claim.
III.
Palmer asserts that the district court abused its discretion in
denying his supplemental motion for new trial because the jury’s
finding that Robbins did not cause Palmer’s criminal prosecution
was against the clear or great weight of the evidence. See Hewitt v.
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B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir. 1984). To the
contrary, Robbins contends that there was overwhelming evidence
to support the jury’s verdict. Robbins claims that since he was not
a member of law enforcement and directly involved in the decision
to arrest or prosecute Palmer, a jury could only find that Robbins
caused the criminal prosecution if he engaged in deception or
undue pressure regarding the law enforcement personnel who had
the authority to arrest or prosecute. See Barts v. Joyner, 865 F.2d
1187, 1195 (11th Cir. 1989). Robbins argues that Palmer failed to
make such a showing at trial, and we should uphold the jury
verdict.
To prevail on a claim of malicious prosecution, Palmer must
show that Robbins caused a criminal proceeding to be instituted or
continued against him; that Robbins acted with malice and without
probable cause; that the proceeding terminated in his favor; that he
was unlawfully seized because of the criminal proceeding; that
Robbins’s conduct caused Palmer’s injuries; and that Robbins acted
under color of law. See Paez v. Mulvey, 915 F.3d 1276, 1285 (11th Cir.
2019). In this case, the jury did not address every element of the
malicious prosecution claim because it found that Palmer failed on
the first element of causation. A defendant cannot be the legal
cause of a prosecution or other criminal proceeding where there is
no evidence that the defendant had anything to do with the
decision to prosecute or that the defendant had improperly
influenced that decision. See Eubanks v. Gerwen, 40 F.3d 1157, 1160-
61 (11th Cir. 1994). “The intervening acts of the prosecutor, grand
jury, judge[,] and jury . . . each break the chain of causation unless
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23-10433 Opinion of the Court 11
plaintiff can show that these intervening acts were the result of
deception or undue pressure by the defendant.” Barts, 865 F.2d at
1195.
The trial record shows that the jury heard two days of
testimony from Robbins, McBride, Winston, and Don McLemore,
Robbins’s supervisor, and law enforcement personnel. The jury
viewed the surveillance tape, which was introduced by Palmer.
Robbins described his duties as running the daily operations at
Herty. In 2016, he learned that unauthorized gas was missing from
Herty’s pumps, and he installed a surveillance camera to monitor
the gas pump area. Robbins stated that he was able to identify,
based on their physical characteristics and the vehicles they drove,
three Herty employees stealing gas from the pumps for personal
use. Robbins contacted his supervisor, McLemore, who stated that
he would contact the University Police Department. Robbins
testified that McLemore instructed him to contact Officer McBride,
and McLemore corroborated this testimony, stating that it was his
decision to involve the police based on his observation of the
criminal conduct he saw in the surveillance video.
McBride testified that he personally viewed the surveillance
video, and it was obvious to him that the individuals were taking
the gas for their own personal use. McBride originally told Robbins
and McLemore to handle the matter internally, but McBride’s chief
later instructed him to conduct a further investigation. McBride
then contacted Robbins and asked him to find another witness who
could identify the individuals in the video. Robbins asked Winston
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to watch the video, which he did, and he clearly identified Palmer
and two other individuals. Winston stated that he truthfully
identified the three individuals, and he was not pressured to
identify a specific individual. However, Palmer introduced a phone
call recording in which Winston told Palmer that he felt he was
being used by Robbins. Winston explained at trial that his
statements on the phone were made in anger because he did not
want to be involved in the investigation, and he felt he was being
used in an inappropriate manner.
McBride further testified that he asked Robbins to arrange a
meeting with Palmer and the other two suspects. While he was at
Herty for the meeting, McBride noticed the three vehicles driven
by the suspects appeared to be the same three vehicles he saw in
the surveillance video. McBride identified the vehicles based on
their color, make and model. McBride stated that his chief
instructed him to secure arrest warrants for the suspects because
the Georgia Southern University’s administration wanted to
pursue criminal charges. McBride then contacted the Savannah-
Chatham Metro Police Department and sent the case file to
Sergeant Joe Lewis to review, and his department issued the arrest
warrants. Thus, neither Robbins, McBride, nor Winston procured
the arrest warrants for Palmer and the other two suspects.
The record demonstrates that the district court did not err
in denying Palmer’s supplemental motion for new trial. The trial
testimony demonstrates that Robbins identified Palmer as a
suspect in the theft, the intervening acts of McLemore, McBride,
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23-10433 Opinion of the Court 13
and the Savannah-Chatham police broke the causal chain, and that
Robbins had no authority or intention to have Palmer prosecuted
criminally. McBride’s testimony showed that law enforcement
independently analyzed the facts and required other pieces of
evidence apart from Robbins’s identification in deciding to pursue
criminal charges against Palmer. Apparently, the jury found
McBride and Winston credible, and it is not within the court’s
discretion to overturn the jury’s determination on issues of
credibility. Palmer failed to prove that Robbins’s identification of
him was the legal cause of his criminal prosecution. Accordingly,
based on the aforementioned reasons, we affirm the district court’s
order denying Palmer’s supplemental motion for a new trial on his
claim of malicious prosecution.
AFFIRMED.
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