Michael Palmer v. Richard Robbins

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[DO NOT PUBLISH]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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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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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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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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“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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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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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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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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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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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.