# Michael Palmer v. Richard Robbins

> Court of Appeals for the Eleventh Circuit · September 7, 2023

URL: https://www.frixlaw.com/law-library/cases/9838689

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** September 7, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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[DO NOT PUBLISH]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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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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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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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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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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12 Opinion of the Court 23-10433

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9838689. Public record. Not legal advice.