Fields v. Spencer

410 S.E.2d 39, 200 Ga. App. 890, 1991 Ga. App. LEXIS 1167

Opinions

Beasley, Judge.

Plaintiff appeals from an order dismissing his complaint against defendants. The trial court granted the dismissal, with prejudice, on two grounds, one of which was that the plaintiff’s complaint under 42 USC § 1983 was frivolous. This second ground is in the nature of a judgment for failure to state a claim, OCGA § 9-11-12 (b) (6), and is not subject to OCGA § 9-11-41 (b)’s non-finality policy. The judgment, insofar as it is based on this second ground, is validly with prejudice.

Judgment affirmed.

Sognier, C. J., Birdsong, P. J., Cooper and Andrews, JJ., concur. McMurray, P. J., Banke, P. J., Carley and Pope, JJ., dissent.