Palmer v. Risko
Filing
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MEMORANDUM. Signed by Judge James K. Bredar on 12/4/2015. (c/m 12/4/2015)(ko, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KENNETH DANIEL PALMER, #224480
Plaintiff,
v.
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POLICE OFFICER RISKO
POLICE OFFICER RYAN L. PRITZKER
Defendants.
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CIVIL ACTION NO. JKB-15-1549
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MEMORANDUM
I. Background
On May 28, 2015, plaintiff Kenneth Daniel Palmer (“Palmer”) filed a Fourth Amendment
complaint against Baltimore County Police Officer Erin Risko pursuant to 42 U.S.C. § 1983,
seeking compensatory and punitive damages. Palmer claimed that the officer falsely charged,
arrested, and imprisoned him on a heroin possession charge on August 10, 2014. ECF No. 1.
On September 28, 2015, Palmer was granted leave to add Baltimore County Police Officer Ryan
Pritzker as a defendant for his participation in arresting Palmer for heroin possession in August
of 2014. ECF Nos. 16 & 18. The principal issue here is whether a genuine dispute exists that
there was probable cause to arrest Palmer.
Pending before the court are defendants’ unopposed1 motions to dismiss, or in the
alternative, for summary judgment, construed as motions for summary judgment. 2 ECF Nos. 13
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The record shows that on September 10 and November 9, 2015, Palmer was served with
notices of the dispositive motions being filed pursuant to the requirements of Roseboro v. Garrison, 528
F.2d 309 (4th Cir. 1975). ECF Nos. 14 & 23. He was cautioned that he had seventeen days to file a
written response and his failure to submit a response could result in the entry of judgment in defendants’
favor. No opposition or response was filed.
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Palmer has been released from custody. All dispositive motions and Roseboro notices
& 21. The motions may be determined on the pleadings and shall be granted without oral
hearing. See Local Rule 105.6 (D. Md. 2014).
II. Standard for Summary Judgment
Under Federal Rule of Civil Procedure 56, the court must grant summary judgment if the
moving party demonstrates there is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In reviewing a motion for
summary judgment, the court views the facts in a light most favorable to the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S. H. Kress & Co.,
398 U.S. 144, 157 (1970)).
Once a motion for summary judgment is properly made and supported, the opposing
party has the burden of showing that a genuine dispute exists. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). Rule 56(c) requires the nonmoving party to
go beyond the pleadings and by its own affidavits, depositions, answers to interrogatories, and
admissions, designate specific facts showing the existence of a genuine issue for trial. Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmoving party “cannot create a genuine issue
of material fact through mere speculation or the building of one inference upon another.” Beale
v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) (citing Barwick v. Celotex Corp., 736 F.2d 946, 963
(4th Cir. 1984)). “[T]he mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247–48. A “material
fact” is one that might affect the outcome of a party's case. Id. at 248; see also JKC Holding Co.
were served on him at the proper mailing addresses.
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v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citing Hooven–Lewis v.
Caldera, 249 F.3d 259, 265 (4th Cir. 2001)). Whether a fact is considered to be “material” is
determined by the substantive law, and “[o]nly disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the entry of summary judgment.”
Anderson, 477 U.S. at 248; accord Hooven-Lewis, 249 F.3d at 265.
A “genuine” issue
concerning a “material” fact arises when the evidence is sufficient to allow a reasonable jury to
return a verdict in the nonmoving party's favor. Anderson, 477 U.S. at 248.
III. Discussion
Facts
Palmer states that on August 10, 2014, Police Officers Erin Risko and Ryan Pritzker
falsely arrested him for heroin possession outside a Best Buy Store in Baltimore County,
Maryland. He claims that Risko never retrieved heroin from him or in the nearby vicinity.
Palmer further alleges that Risko’s report never specified how he came across the heroin,
although he reported that Palmer “did in fact possess the controlled dangerous substance heroin.”
ECF No. 1. He contends that as of April 28, 2015, all charges were dismissed. Id. Palmer
additionally claims that the charges were maliciously filed to cause a violation of his probation.
Id.
In their unopposed summary judgment motions, defendants affirm that on the night of
August 9, 2014, Risko responded to a report of a theft inside the Best Buy Store in Owings Mills,
Maryland. Brandon Clark, the store’s Director of Counter Intelligence, advised Risko that he
had seen a black wheelchair-bound female in the television aisle, concealing merchandise behind
her back. Clark indicated that he went to the security office and observed the female on camera
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while she continued to push herself through the store. As she approached the exit without paying
for the concealed merchandise, Clark confronted her and brought her to the security office.
Clark identified her by her Motor Vehicle Administration photograph as Arnette Yolanda
Jackson. ECF No. 13-3, Incident Report 8/9/2014; ECF No. 13-5, Risko Aff.; ECF No. 21-5,
Risko Aff.3 Several items totaling $267.96 were recovered from behind Jackson’s back and the
back of her wheelchair. ECF No. 13-3, ECF No. 21-3, ECF No. 13-5 at Risko Aff. and ECF
No. 21-5 at Risko Aff.
Baltimore County Police Officer Ryan Pritzker was dispatched to the Best Buy Store to
back up Officer Risko. Upon his arrival he observed a black male with a duffle bag and several
shopping bags seated on the bench outside the store. ECF No. 13-6 at Pritzker Aff. and ECF
No. 21-6 at Pritzker Aff. Pritzker observed the man stare down the police cars and avoid eye
contact with the officers as they entered the store. Based upon his training and expertise,
Pritzker believed the man’s actions were unusual and suspected that he may have been a look-out
for the shoplifter. Pritzker approached the man and asked him if he knew Arnette Jackson. The
man stated that she was his girlfriend and handed Jackson’s bank card to Pritzker. Id.
Pritzker asked Palmer if he had any weapons on his person and Palmer produced a few
syringes and a knife from his front pants pocket. Officer Pritzker advised Palmer that he was
under arrest for possession of drug paraphernalia. When conducting a search incident to arrest
Pritzker recovered 50 syringes and 5 gel capsules containing a white powdery substance from the
front pocket of Palmer’s book bag. Pritzker affirms that through his training and experience he
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All exhibits are referenced by their electronic pagination number.
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recognized the powdery substance as suspected heroin. Palmer was transported to a local police
precinct, where he was charged with controlled dangerous substance (“CDS”) possession, not
marijuana, and possession of CDS equipment with intent to distribute. On April 28, 2015, the
State’s Attorney’s Office for Baltimore County entered a nolle prosequi to all charges filed
against Palmer. ECF No. 13-4 and ECF No. 21-4.
Legal Analysis
In order to state a claim under § 1983 for an unconstitutional warrantless arrest, a
plaintiff must show that the arrest was made without probable cause. “Probable cause to justify
an arrest arises when facts and circumstances within the officer’s knowledge ... are sufficient to
warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown,
that the suspect has committed, is committing, or is about to commit an offense.” Porterfield v.
Lott, 156 F.3d 563, 569 (4th Cir. 1998) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37
(1979)). The determination is inherently fact-specific, but typically turns on two primary factors:
(1) the suspect’s conduct known to the officer, and (2) the contours of the offense thought to be
committed by that conduct. Rogers v. Pendleton, 249 F.3d 279, 290 (4th Cir. 2001); Pritchett v.
Alford, 973 F.2d 307, 314 (4th Cir. 1992). Where “no reasonable officer could believe, in light
of the contours of the offense at issue, that probable cause exists to arrest that person, a violation
of a clearly established Fourth Amendment right ... ensues.” Rogers, 249 F.3d at 290 (citing
Smith v. Reddy, 101 F.3d 351, 356 (4th Cir. 1996)). Probable cause “requires more than bare
suspicion but requires less than evidence necessary to convict.” Porterfield, 156 F.3d at 569.
Probable cause for an arrest exists when “the facts and circumstances within [the
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officers’] knowledge and of which they had reasonably trustworthy information were sufficient
to warrant a prudent man in believing that the [defendant] had committed or was committing an
offense.” Cloaninger ex rel. Estate of Cloaninger v. McDevitt, 555 F.3d 324, 334 (4th Cir. 2009)
(quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). “[R]easonable law officers need not ‘resolve
every doubt about a suspect’s guilt before probable cause is established.’” Gomez v. Atkins, 296
F.3d 253, 262 (4th Cir. 2002) (quoting Torchinsky v. Siwinski, 942 F.2d 257, 264 (4th Cir.
1991)).
Probable cause is evaluated by the totality of the circumstances, and it is a “practical,
nontechnical conception.” Illinois v. Gates, 462 U.S. 213, 230–31 (1983); Brinegar v. United
States, 338 U.S. 160, 175–76 (1949).
Moreover, it is “a fluid concept - turning on the
assessment of probabilities in particular factual contexts - not readily, or even usefully, reduced
to a neat set of legal rules.” Illinois, 462 U.S. at 232.
In the particular factual context presented in this case, no material factual dispute exists
as to whether Palmer’s arrest was supported by probable cause sufficient to preclude the granting
of summary judgment on Palmer’s false arrest claim under the Fourth Amendment. The Court
finds that defendants’ reliance on facts known at the time of the arrest provided them probable
cause to support Palmer’s arrest and charges. Palmer’s legal conclusion that the charges were
dismissed does not support his Fourth Amendment claim, as it does not automatically provide
evidence of lack of probable cause.4 See Fisher v. Matthews, 792 F. Supp. 2d 745, 776 (M.D.
The exhibits show that Palmer’s charges were nolle prossed on April 28, 2015. ECF
No. 13-4 & ECF No. 21-4; see also State v. Palmer, Case No. 03K14006583 (Circuit Court for Baltimore
County).
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Pa. 2011) (simply because charges filed against plaintiff were nolle prossed and withdrawn when
plaintiff's case was before the county court, does not necessarily show that defendants lacked
probable cause to arrest and to issue the criminal complaint against plaintiff). Palmer has failed
to show that the charges were filed without probable cause.5
IV. CONCLUSION
Defendants’ motions, treated as motions for summary judgment, shall be granted. A
separate Order shall be entered reflecting the ruling reached in this decision.
Date: December 4, 2015
/s/
James K. Bredar
United States District Judge
As this court has determined that Palmer’s constitutional claims against defendants are
without merit, it need not address their qualified immunity argument.
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