STANLEY GREEN v. GEORGIA DEPARTMENT OF CORRECTIONS

• Court: Court of Appeals of Georgia
• Decided: October 12, 2022
• Docket: A22A0930
• Status: Published

Opinion

FIFTH DIVISION MCFADDEN, P. J., GOBEIL and LAND, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

October 12, 2022

In the Court of Appeals of Georgia A22A0930. GREEN v. GEORGIA DEPARTMENT OF CORRECTIONS et al.

LAND, Judge.

Stanley Green alleges that, as a result of negligent care he received while

incarcerated from March 27, 2018 to June 16, 2018, he suffered a partial amputation

of his leg due to infection. After his lawsuit in federal court against individual nurses

and doctors employed by the Board of Regents of the University System of Georgia

(“BOR”) and the Georgia Department of Corrections (“DOC”) was dismissed, Green

sued the BOR and DOC in the Superior Court of Butts County. The superior court

dismissed Green’s claims on the ground that they were time-barred, resulting in this

appeal. Because the trial court correctly concluded that Green’s claims are untimely

and cannot be saved by Georgia’s renewal statute (OCGA § 9-2-61 (a)) or the tolling provision of the federal supplemental jurisdiction statute (28 USC § 1367 (d)), we

affirm.

A motion to dismiss “is properly granted when a complaint shows on its face

that the statute of limitation has run and there is no further showing by amendment

or by affidavit that a tolling of the statute is possible.” Harpe v. Hall, 266 Ga. App.

340, 340 (596 SE2d 666) (2004). When a question of law is at issue, such as whether

an action is barred by the statute of limitation, “we owe no deference to the trial

court’s ruling and apply the plain legal error standard of review.” (Citation and

punctuation omitted.) Id.

The Federal Lawsuit. The record shows that on May 20, 2020, Green filed suit

in the United States District Court for the Middle District of Georgia against four

state-employed doctors and nurses, individually, who oversaw his healthcare while

he was an inmate with the Georgia Department of Corrections as well as against the

DOC and Georgia Correctional Healthcare (“GCHC”). See Green v. Dreaden et al.,

Civil Action No. 5:20-CV-00195 (“Green I”). Green’s complaint alleged that nurses

and doctors employed by the DOC and BOR provided him with inadequate medical

care for a cut on his foot between March 27, 2018, and June 16, 2018, which resulted

in an infection that required a portion of his leg to be amputated.

2 The complaint in Green I asserted three claims: (1) against individual nurses

and doctors for state law tort causes of action (ordinary negligence, gross negligence

and medical malpractice); (2) against individual nurses and doctors for federal civil

rights claims (deliberate indifference to his medical needs under the Eighth

Amendment); and (3) against DOC and GCHC for federal civil rights violations

(supervisory liability and deliberate indifference to his medical needs under the

Eighth Amendment). BOR was not a defendant in Green I, and Green did not assert

state law tort claims against DOC or GCHC.

In Green I, the district court granted DOC and GCHC’s motion to dismiss the

claims against them on the grounds that those claims were barred by sovereign

immunity. The district court also granted the individual defendants’ motion for partial

summary judgment on the state law tort causes of action on the ground that, because

these individual doctors and nurses were acting within the scope of their employment,

the tort claims should have been asserted against “the agency employing them.” See

Hartley v. Agnes Scott College, 295 Ga. 458, 462-65 (2) (a) (759 SE2d 857) (2014)

(lawsuits under the Georgia Tort Claims Act must be brought against “only the state

government entity for which the state officer or employee was acting,” and not

against the state officer or employee individually). The trial court’s order

3 acknowledged that “ordinarily, the Board of Regents and Georgia Department of

Corrections would be substituted for” the individual defendants, but declined to make

that substitution because the Georgia Tort Claims Act’s waiver of sovereign

immunity “does not include claims brought in federal court.” See OCGA § 50-21-25

(b) (in the event that a state officer or employee is individually named for an act or

omission for which the state is liable under the Georgia Tort Claims Act, “the state

government entity for which the state officer or employee was acting must be

substituted as the party defendant”); OCGA § 50-21-23 (Under the Georgia Tort

Claims Act, “[t]he State does not waive any immunity with respect to actions brought

in the courts of the United States”). Green did not move to substitute the individual

defendant’s employing state agencies as defendants in the federal action and did not

appeal from the district court’s order. The federal civil rights claims remain pending

against the individual doctors and nurses.

The State Lawsuit. On April 22, 2021, approximately one month after the

district court’s order, Green filed the instant lawsuit (“Green II”) in the Superior

Court of Butts County against the DOC and the BOR alleging state law tort claims.

The complaint asserts claims against these defendants for the alleged ordinary

4 negligence, gross negligence, and medical malpractice of the individual doctors and

nurses who treated Green during his incarceration.

The DOC and BOR filed a motion to dismiss, arguing, inter alia, that Green’s

claims were barred by the statute of limitation and that the case was not a valid

renewal of Green I because it involved different defendants. In response, Green

argued that Green II was not time-barred because 28 U.S.C. § 1367 (d) tolled his state

law tort claims against BOR and DOC while those claims were pending against the

individual state employees in Green I. He also argued that Green II was a proper

renewal because, under the Georgia Tort Claims Act, DOC and BOR had been

automatically substituted for the individual defendants. See OCGA § 50-21-25 (b).

The trial court granted DOC and BOR’s motion to dismiss, concluding that

Green II was time-barred by the statute of limitations and that it was not subject to

tolling provisions. Additionally, the trial court noted that Green failed to perfect

service of process as mandated by the Georgia Tort Claims Act and so Green I was

a void action that could not be renewed. Green appeals from that order.

1. Applicable Statute of limitation. Tort claims asserted against the State are

subject to a two-year limitation period. See OCGA § 50-21-27 (c) (“any tort action

brought pursuant to [the Georgia Tort Claims Act] is forever barred unless it is

5 commenced within two years after the date the loss was or should have been

discovered”). See also Burroughs v. Ga. Ports Auth., 339 Ga. App. 294, 297 (1) (793

SE2d 538) (2016).

Green’s complaint in Green II alleges that the DOC and BOR’s alleged

negligence or medical malpractice occurred between March 27, 2018 and June 16,

2018. Thus, Green ordinarily would have been required to file suit by June 16, 2020.

Because of the Covid-19 pandemic, however, the Georgia Supreme Court entered

several judicial emergency orders that extended this period by 122 days. See First

Merit Credit Services v. Fairway Aviation, LLC, 359 Ga. App. 829 (860 SE2d 126)

(2021) (discussing the Georgia Supreme Court’s judicial emergency orders and their

impact on deadlines, including the statute of limitation). Green was therefore required

to file his suit by October 16, 2020. Instead, he filed Green II on April 22, 2021.

2. Green contends that the superior court erred in dismissing Green II because

it was a valid renewal of Green I under state law, filed within OCGA § 9-2-61’s six-

month grace period. This argument is without merit. Green II is not a valid renewal

under OCGA § 9-2-61 because (1) Green failed to assert his state law tort claims

against the same defendants in Green I and Green II, and (2) he failed to perfect

6 service of process against the defendant state agencies in Green I as required by the

Georgia Tort Claims Act.

A “properly filed renewal action stands on the same footing as the original

action with respect to statute of limitation.” Coen v. Aptean, Inc., 356 Ga. App. 468,

479 (1) (847 SE2d 835) (2020). Thus, “if a renewal action is properly filed within six

months after dismissal of the original action, it remains viable even though the statute

of limitation may have expired.” (Citation and punctuation omitted.) Id. See OCGA

§ 9-2-61 (“[w]hen any case has been commenced in either a state or federal court

within the applicable statute of limitation and the plaintiff discontinues or dismisses

the same, it may be recommenced in a court of this state or a federal court either

within the applicable period of limitation or within six months after the

discontinuance or dismissal, whichever is later”). If the statute of limitation has not

run, the plaintiff “may add new parties and new claims to the refiled action; however,

if the statute of limitation has expired, the plaintiff is limited to suing the same

defendants under the same theories of recovery.” Ward v. Dodson, 256 Ga. App. 660,

661 (569 SE2d 554) (2002). If the statute of limitation has run, the new complaint

must be “substantially the same as the original as to the essential parties. The renewal

7 statute may not be used to suspend the running of the statute of limitation as to

defendants different from those originally sued.” Id.

Here, because Green II was filed after the expiration of the statute of

limitation, he is limited to suing the same defendants he sued and under the same

theories of recovery as he did in Green I. Green claims that the individual defendants

named in Green I and the state entities in Green II “are substantially the same” and

therefore this renewal action can be brought even if the original statute of limitation

has run. This is incorrect. While a renewal action must assert “substantially the same”

cause of action that was asserted in the original suit, a plaintiff is not allowed to add

parties (even closely related parties) to the renewal action after the expiration of the

statute of limitation. See Costello v. Bothers, 278 Ga. App. 750, 752 (3) (629 SE2d

599) (2006) (renewal action filed against owner of vehicle not permitted where

original action was filed against driver of same vehicle) (overruled on different

grounds by Ragan v. Mallow, 319 Ga. App. 443, 447 (2) (744 SE2d 337)

(2012);Ward v. Dodson, 256 Ga. App. at 661 (renewal action filed against deputy

sheriff in his official capacity not permitted where original action was filed against

deputy sheriff in his individual capacity); Collins v. Byrd, 204 Ga. App. 893, 895 (2)

(420 SE2d 785) (1992) (amendment of renewal action filed against DOT to add DOT

8 employees not permitted where those employees were not named as defendants in

original action); Wagner v. Casey, 169 Ga. App. 500, 501 (2) (313 SE2d 756) (1984)

(renewal action not permitted against corporation not named as defendant in original

suit).

Green’s argument that the party-substitution provision of OCGA § 50-21-26

(b) means that the individual defendants in Green I and the state entity defendants in

Green II are “substantially the same” is without merit. A lawsuit against a state entity

is authorized by the State’s limited waiver of sovereign immunity in OCGA § 50-21-

23 (a).1 OCGA § 50-21-25 (b) provides that a person bringing an action against the

State “must name as a party defendant only the state government entity for which the

state officer or employee was acting and shall not name the state officer or employee

individually.” It is true that in the event a state employee is individually named “for

an act for which the state is liable . . . , the state government entity for which the state

1 OCGA § 50-21-23 (a) provides, in relevant part, that The State waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances; provided, however, that the state’s sovereign immunity is waived subject to all exceptions and limitation set forth in this article. . . .

9 officer or employee was acting must be substituted as the party defendant.” OCGA

§ 50-21-25 (b). However, in this case, Green did not seek to substitute the state

agencies for the individual defendants, the federal court declined to do so sua sponte,

and Green did not appeal from that order. Because Green had not substituted the DOC

or the BOR for the individual defendants in Green I, he cannot rightly contend that

the tort claims in this case are being asserted against the same defendants that he

asserted those claims against in the original action. That fact is fatal to his argument.

Further, even if the state agencies sued in Green II had been automatically

substituted for the individual defendants in the federal lawsuit (a proposition we

reject), Green II would still not be a valid renewal of Green I under OCGA § 9-2-61

because he did not provide ante litem notice or perfect service in accordance with the

Georgia Tort Claims Act against the state entities in Green I. “It is well settled in

Georgia law that in order for a case to qualify as a renewal action, the earlier filed suit

must have been a valid action with proper service on the defendant.” Black v. Knight,

231 Ga. App. 820, 821 (499 SE2d 69) (1998) (emphasis supplied). See also Alston

v. Owners Ins. Co., 361 Ga. App. 146, 148 (863 SE2d 397) (2021) (OCGA § 9-2-61

applies “only to actions that are valid prior to dismissal,” and an action is invalid “if

service is not perfected” because “the filing of a complaint without perfecting service

10 does not constitute a pending suit”); Black, 231 Ga. App. at 821 (“It is well settled in

Georgia law that in order for a case to qualify as a renewal action, the earlier filed suit

must have been a valid action with proper service on the defendant”) (emphasis in

original). Although Green served the individual defendants in Green I, he did not

complete the requirements to serve a state agency under the Georgia Tort Claims Act.

The Georgia Tort Claims Act requires that a lawsuit against such a state agency

under the Act “may not be commenced unless and until the plaintiff has provided

prior written notice of the tort claim to both the Risk Management Division of the

State’s Department of Administrative Services and “the state government entity, the

act or omissions of which are asserted as the basis of the claim.” Hartley, 295 Ga. at

464 (2) (b), citing OCGA § 50-21-26 (a) (2). See also OCGA § 50-21-26 (a) (5) (A)

(The ante litem notice must identify, among other things, “[t]he name of the state

government entity, the acts or omissions of which are asserted as the basis of the

claim”). A plaintiff is also required to serve “the chief executive officer of the state

government entity involved,” as well as the director of the Department of

Administrative Services Risk Management Division. OCGA § 50-21-35. Green did

not comply with these ante litem and service requirements in Green I. He cannot now

resurrect a case against a different defendant and avoid the consequences of his

11 failure to sue the correct defendant and comply with the ante litem notice and service

requirements of the Georgia Tort Claims Act by bringing suit in a state venue. See

Wang v. Moore, 247 Ga. App. 666, 669 (1) (544 SE2d 486) (2001) (because plaintiff

“could sue the Board of Regents only for damages allegedly arising out of the

performance of [state employee’s] duties, and because he did not name the Board of

Regents as a party nor did he properly serve ante litem notice before suit was filed.

. . any suit against the Board of Regents was ‘procedurally foreclosed’”).

Green’s arguments “that the requisite state agencies had actual notice [and thus

should be subject to the relation-back provision of OCGA § 9-11-15 (c)] contains no

weight, as this fact has previously been held to be irrelevant” when there was a failure

to comply with the ante litem provisions of the Georgia Tort Claims Act. Dempsey

v. Bd. of Regents of the Univ. Sys. of Georgia, 256 Ga. App. 291, 293 (568 SE2d 154)

(2002). For each of these reasons, Georgia’ renewal statute does not save Green’s

time-barred claims.

3. Green argues that the trial court erred in dismissing Green II because his

professional negligence claim was tolled under 28 USC § 1367 (d) while it was

pending in federal court. We disagree.

12 The federal supplemental jurisdiction statute, 28 USC § 1367, contains a tolling

provision for supplemental state law claims that are included in a federal civil action

but are later dismissed. Section 1367 provides in relevant part:

(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. . . .

(d) The period of limitation for any claim [for which the federal court exercises its supplemental jurisdiction] . . . shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.

In Green I, Green filed state law tort claims against individual doctors and

nurses who treated him during his incarceration. If Green had sued those same

individual defendants in superior court in Green II, then the tolling provision of 28

USC § 1367 (d) would apply. But that is not what he did. Green instead filed his state

law tort claims in Green II against different defendants—DOC and BOR. Because

13 DOC and BOR were not named as defendants for Green’ s state law tort claims in

Green I, 28 USC § 1367 (d) does not apply.

Even if we assume for purposes of argument that the DOC and BOR were

automatically substituted for the individual defendants (a proposition we reject, as

stated above), the federal tolling provision “does not toll the limitation period for

state law claims asserted against nonconsenting state defendants” sued in federal

court when those claims are dismissed on Eleventh Amendment grounds. Raygor v.

Regents of the Univ. of Minn., 534 U. S. 533 (122 SCt 999, 152 LE2d 27) (2002). In

Raygor, the plaintiffs asserted state law claims against a state university in federal

court. Id. 534 U. S. at 536 (II). The district court dismissed the claims based on

Eleventh Amendment immunity, and the plaintiffs refiled them in state court after the

statute of limitation expired. Id. To avoid the time bar, the plaintiffs argued that 28

USC § 1367 (d) tolled the limitation period for the state law claims while they were

pending in federal court. The Supreme Court disagreed and held that “the tolling

provision does not apply to claims in federal court filed against nonconsenting

state[s].” Id. at 542 (II) (To hold otherwise would “require a State to defend against

a claim in state court that had never been filed in state court until some indeterminate

time after the original limitation period had elapsed”). Here, the State of Georgia has

14 not consented for its agencies or employees to be sued in federal court based on state

law tort claims. See OCGA § 50-21-23 (The Act provides that “[t]he state does not

waive any immunity with respect to actions brought in the courts of the United

States”); Jude v. Morrison, 534 F.Supp.2d 1365, 1368 (II) (N.D. Ga. 2008)

(dismissing state law tort claims filed against the State agency in federal court). Thus,

the tolling provision of 28 USC § 1367 (d) does not apply to extend the statute of

limitation in Green II. See Raynor, 534 U. S. at 536 (II).

Based on the above, the superior court did not err in granting the defendants’

motion to dismiss Green’s complaint on the grounds that it was barred by the statute

of limitation.

Judgment affirmed. McFadden, P. J., and Gobeil, J., concur.