Opposition Brief — Doe v. Georgia Department of Corrections

Supreme Court y. S.

j 4k D

a FEB 27 1996

a CLERK

Supreme Court of the United States

October Term, 1997

e

JANE DOE #102,

Petitioner,

GEORGIA DEPARTMENT OF CORRECTIONS,

Respondent.

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On Petition For A Writ Of Certiorari

To The Supreme Court Of Georgia

¢

BRIEF OF RESPONDENT IN OPPOSITION

¢

JoHN C. Jones 401250

Counsel of Record for Respondents

Senior Assistant Attorney General

THuRBERT E. Baker 033887

Attorney General

KATHLEEN M. Pacitous 558555

Deputy Attorney General

Diane Festin LARoss 430830

Assistant Attorney General

RavpH Exuis 295840

Assistant Attorney General

Please serve:

JouHN C. Jones

40 Capitol Square, S.W.

Atlanta, Georgia 30334-1300

Telephone: (404) 656-3356

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

COUNTERSTATEMENT OF QUESTIONS PRESENTED

1. Whether the inquiry concerning the applicable

statute of limitations is improper because the Georgia

Department of Corrections is not a “person” within the

meaning of 42 U.S.C. § 1983 pursuant to Will v. Michigan

Department of State Police, 491 U.S. 58 (1989).

2. Whether the Supreme Court of Georgia correctly

upheld the trial court’s dismissal of the Petitioner’s fed-

eral civil rights claims pursuant to the State of Georgia's

general statute of limitations for personal injury actions,

O.C.G.A. § 9-3-33, as required by Wilson v. Garcia, 471

U.S. 261 (1985) and Owens v. Okure, 488 U.S. 235 (1989).

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTIONS PRESEN-

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CASES

Battle v. Barts, 211 Ga. App. 106 (438 S.E.2d 1985)

oe aah os eae en Uae Cais Gk cd dedxe cs occ: 3

Board of Regents of the Unive rsity of the State of New

York v. Tomanio, 446 U.S. 478 SE a Wd hoa sc oka 11

Camps v. City of Winder, 822 F.Supp. 724 (M.D. Ga.

Me ENG do od coh dk as nk kaoko SG bk ekike. 12

Day v. Brown, 207 Ga. App. 134 (427 S.E.2d 104)

NR Nyda Sg isis Gai Wh KA KKK CRS Mdbo 44.66 eo ka nomen 3

Department of Human Resources v. Money, 222 Ga.

App. 149(1) (473 S.E.2d 200) (1996) ................ 4

Dixon v. Chrans, 986 F.2d 201 (7th Cir. a 14

Giles v. Garwood, 853 F.2d 876 (11th Cir. 1988)........ 3

Hardin v. Straub, 490 U.S. 536 Eat eee 12, 13

Hill v. Department of Corrections, 513 So.2d 129

IRN Cricehee ce ee 13

Howard v. State of Georgia, 226 Ga. App. 543(1) (487

I hs ee ae k'v sk Che choc cockney 4

Howlett v. Rose, 496 U.S. 356 (1990) ................. 13

Hughes v. Sheriff of Fall River County Jail, 814 F.2d

I, ns nn dv ec kd x bccunscdeccnca, 14

Owens v. Okure, 488 U.S. 235 (109 S.Ct. 573, 102

L.Ed.2d 594) (1989)................. 3, 4, 6, 8, 10, 12

Will v. Michigan Department of State Police, 491 U.S.

58 ee 14

Williams v. City of Atlanta, 794 F.2d 624 (11th Cir.

I ee 3

Wilson v. Garcia, 471 U.S. 261 (105 S.Ct. 1938, 85

ome AP CUOMO) ao. ce. neces cd, @ 10, 12

1

BRIEF FOR RESPONDENT IN OPPOSITION

Respondent, Georgia Department of Corrections,

respectfully submits this Brief in Opposition to the Peti-

tion for Certiorari filed in the above-captioned case.

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STATEMENT OF THE CASE

A. Statement of Facts

Petitioner’s statement of facts will not assist this

court. Petitioner has recited an inflammatory version of

facts which are not relevant to the strictly legal /pro-

cedural question before this Court. Respondent submits

their concise statement of facts and shows the following:

Petitioner’s complaint filed on or about June 27, 1994

sought damages for alleged violations of her rights pro-

tected by common law, the Georgia Constitution, and the

Constitution of the United States while in the custody of

Respondent in 1991. Pet. App. A-3-4. The alleged torts

and constitutional violations occurred while Petitioner

was incarcerated at Georgia Women’s Correctional Insti-

tution during 1991. Pet. App. A-3. Petitioner’s claims

under 42 U.S.C. § 1983 alleged violations of her rights

under the Fourth, Eighth, Tenth, and Fourteenth Amend-

ments to the United States Constitution. Pet. App. A-4.

B. Proceedings Below

Petitioner filed a Complaint pursuant to the Georgia

Tort Claims Act, O.C.G.A. § 50-21-20, in the State Court of

Fulton County, State of Georgia, on June 27, 1994. Pet.

App. 4B, 4a, 7a. Respondent filed a Motion to Dismiss

contending that venue was improper in Fulton County,

that the civil action was barred by the applicable statute

of limitations, that Petitioner had failed to comply with

the ante-litem notice provision of the Georgia Tort Claims

Act (“GTCA”), and that the Department of Corrections

was not a “person” within the meaning of 42 U.S.C.

§ 1983. Pet. App. la. The State Court of Fulton County

denied Respondent’s Motion to Dismiss but granted the

Motion to Transfer to the State Court of Baldwin County.

Pet. App. la. Respondent then filed a proper Renewed

Motion to Dismiss pursuant to the Georgia Uniform

Transfer Rules in the State Court of Baldwin County

noting that the State Court’s Order transferring the mat-

ter to Baldwin County was silent on Respondent's speci-

fic assertions that all of Petitioner’s claims, under both

federal and state law, were barred by the applicable stat-

ute of limitations and that the Department of Corrections

is not a “person” within the meaning of 42 U.S.C. § 1983.

Pet. App. la, 7a-9a.

On May 6, 1996, the State Court of Baldwin County

dismissed Count Three of Petitioner’s Complaint alleging

violations of her rights under 42 U.S.C. § 1983 based on

the applicable two-year statute of limitations. Pet. App.

8a-9a. The court deemed it unnecessary to consider the

issue of whether the Department of Corrections is a “per-

son” within the meaning of 42 U.S.C. § 1983 based on the

Court's ruling on the statute of limitations. Pet. App. 9a.

The Court further held that the Petitioner had not com-

plied with the Georgia Tort Claims and dismissed her

Complaint. Pet. App. 9a-10a. Petitioner then appealed the

Order to the Court of Appeals of the State of Georgia.

The Georgia Court of Appeals transferred Peti-

tioner’s Appeal to the Georgia Supreme Court. Pet. App.

6a. Respondent again contended that Petitioner’s 42

U.S.C. § 1983 claims were barred by the two-year statute

of limitations under O.C.G.A. § 9-3-33 and that the Geor-

gia Department of Corrections is not a “person” within

the meaning of § 1983. The Georgia Supreme Court held

that Petitioner had timely complied with the ante litem

notice provisions of the Georgia Tort Claims Act and

reversed the trial court’s dismissal of the Complaint. Pet.

App. 3a. However, the Georgia Supreme Court, affirmed

the dismissal of Petitioner’s § 1983 claims on statute of

limitations grounds pursuant to O.C.G.A. § 9-3-33 and

held the following:

The Baldwin County Court correctly dismissed

the federal civil rights claims as untimely. The

two-year statute of limitation in O.C.G.A.

§ 9-3-33 governs claims brought under 42 U.S.C.

§ 1983 because such claims are most accurately

characterized as personal injury actions. Battle v.

Barts, 211 Ga. App. 106, 107 (438 S.E.2d 1985)

(1993); Day v. Brown, 207 Ga. App. 134 (427

S.E.2d 104) (1993). See also Owens v. Okure, 488

U.S. 235 (109 S.Ct. 573, 102 L.Ed.2d 594) (1989);

Wilson v. Garcia, 471 U.S. 261 (105 S.Ct. 1938, 85

L.Ed.2d 254) (1985); Giles v. Garwood, 853 F.2d

876 (11th Cir. 1988); Williams v. City of Atlanta,

794 F.2d 624 (11th Cir. 1986). Contrary to Doe’s

assertion, this is not changed by O.C.G.A.

§ 50-21-27(b), as its terms do not call for an

extension of the period for filing § 1983 claims.

The GTCA represents a waiver of the State’s

sovereign immunity, limited in extent and man-

ner. O.C.G.A. § 50-21-23(a) and (b). See also

O.C.G.A. §§ 50-21-21, 50-21-25(a). As such, its

provisions should be narrowly construed. How-

ard v. State of Georgia, 226 Ga. App. 543(1) (487

S.E.2d 112) (1997); Department of Human

Resources v. Money, 222 Ga. App. 149(1) (473

S.E.2d 200) (1996). Consequently, it does not

expand the State’s exposure for such federal

claims beyond that expressly provided by the

legislature in O.C.G.A. § 9-3-33.

Petitioner has now filed a Petition for Writ of Cer-

tiorari to review the judgment of the Supreme Court of

Georgia.

REASONS FOR DENYING THE WRIT

The Petition does not warrant this Court’s consider-

ation. Supreme Court Rule 10 makes it clear that review

on a writ of certiorari is not a matter of right but of

judicial discretion and that a petition for a writ of cer-

tiorari will be granted only for compelling reasons.

Supreme Court Rule 10. There are no compelling reasons

to grant the within Petition. Rather, the law dictates its

denial.

This Court has made it clear in the decisions of

Wilson v. Garcia, 471 U.S. 261 (1985) and Owens v. Okure,

488 U.S. 235 (1989) that courts considering § 1983 claims

should borrow the State’s general or residual personal

injury statute of limitations. This Court in Owens held

that “every State has one general or residual statute of

limitations governing personal injury actions” which is

“easily identifiable.” Owens, 488 U.S. at 245-247. This

Court in Owens also stated that “potential § 1983 plain-

tiffs and defendants therefore can readily ascertain, with

little risk of confusion or unpredictability, the applicable

limitations period in advance of filing an action. Id. at

248. As O.C.G.A. § 9-3-33 is clearly the State of Georgia's

general personal injury statute of limitations, this Honor-

able Court must deny Petitioner’s Writ pursuant to the

aforementioned case law.

Moreover, Petitioner’s argument completely ignores

the threshold question that Respondent, Georgia Depart-

ment of Corrections, is not a “person” within the mean-

ing of § 1983 pursuant to Will v. Michigan Department of

State Police, 491 U.S. 58 (1989). Thus, 42 U.S.C. § 1983 does

not even apply to this Respondent and any inquiry con-

cerning the statute of limitations is therefore completely

irrelevant.

ARGUMENT

1. The Georgia Department of Corrections has

argued at each level of the proceedings that it is not a

“person” within the meaning of § 1983 pursuant to Will v.

Michigan Department of State Police, 491 U.S. 58 (1989). The

Georgia Department of Corrections, the only party the

Petitioner is proceeding against in this action, is not a

proper party under 42 U.S.C. § 1983. Therefore, Petitioner

sued the wrong party with respect to 42 U.S.C. § 1983

claims and is out of Court on these claims based upon her

own error. Since the Department of Corrections is not a

“person” subject to suit under 42 U.S.C. § 1983 and no

other “person” is named against whom such claims can

proceed, this Court could deny the Writ of Certiorari on

this basis alone and proceed no further.

2. This Court’s decisions in Wilson v. Garcia, 471 U.S.

261 (1985) and Owens v. Okure, 488 U.S. 235 (1989) are

directly on point, controlling, and have conclusively

determined the statute of limitations issue against Peti-

tioner.

In Wilson, this Court granted certiorari to determine

“the most appropriate state statute of limitations” for

actions filed under 42 U.S.C. § 1983. Wilson, 471 US. at

261, 262. The District Court in this case concluded that

§ 1983 actions are best characterized as actions based on

statute but that there was no specific New Mexico statute

of limitations governing such claims. Id. at 263. The Dis-

trict Court held that § 37-1-4, the residual four-year stat-

ute, applied to § 1983 actions. Id. at 263. New Mexico had

a two-year statute of limitations as contained in

§ 41-4-15(a) of the New Mexico Tort Claims Act, a statute

with a three-year limitation period in § 37-1-8 for actions

for an injury to the person or reputation of any person,

and § 37-1-4 which provided a four-year limitation period

for “all other actions not herein otherwise provided for.”

Id. at 263. The Court of Appeals for the Tenth Circuit held

that the appropriate statute of limitations for § 1983

actions was the three-year statute applicable to personal

injury actions. Id. at 265.

The United States Supreme Court granted certiorari

in Wilson based on the “conflict, confusion, and uncer-

tainty concerning the appropriate statute of limitations to

apply to this most important, and ubiquitous civil rights

Statute.” Id. at 266. The Court held that:

We conclude that the statute (42 U.S.C. § 1988) is

fairly construed as a directive to select, in each

State, the one most appropriate statute of limita-

tions for all § 1983 claims. The federal interests

in uniformity, certainty, and the minimization of

unnecessary litigation all support the conclusion

that Congress favored this simple approach.

Id. at 275. The Court noted that “almost every- § 1983

claim can be favorably analogized to more than one of the

ancient common-law forms of action, each of which may

be governed by a different statute of limitations.” Id. at

272, 273.

This Court held that the Court of Appeals correctly

applied the three-year statute of limitations governing

actions “for an injury to the person or reputation of any

person” on the basis that “§ 1983 claims are best charac-

terized as personal injury actions.” Id. at 280. This Court

stated that:

The characterization of all § 1983 actions as

involving claims for personal injuries minimizes

the risk that the choice of a state statute of

limitations would not fairly serve the federal

interests vindicated by § 1983. General personal

injury actions, sounding in tort, constitute a

major part of the total volume of civil litigation

in the state courts today, and probably did so in

1871 when § 1983 was enacted. H is most

unlikely that the period of limitations applicable

to such claims ever was, or ever would be, fixed

in a way that would discriminate against federal

-laims, or be inconsistent with federal law in

any respect.

Id. at 279.

In the present case, Petitioner is arguing that

O.C.G.A. § 50-21-27(b) of the Georgia Tort Claims Act is

applicable despite the presence of O.C.G.A. § 9-3-33,

Georgia’s general statute of limitations for personal

injury. Similarly, in Wilson, supra, this Court held that the

three-year statute of limitations for personal injury

actions was the appropriate statute despite the presence

of a two-year statute of limitations contained in

§ 41-4-15(a) of the New Mexico Tort Claims Act and a

New Mexico State Police officer as a defendant. There is

simply no reason for this Court to depart from this prece-

dent in the within case.

In Owens v. Okure, 488 U.S. 235 (1989), this Court

again addressed the issue of statute of limitations in

section 1983 claims and again held adversely to Peti-

tioner’s position. The issue in Owens involved the identi-

fication of the correct limitations period for a § 1983

action where a state has one or more statutes of limita-

tions for personal injury actions. Owens, 488 U.S. at 236.

The Court stated that:

In Wilson, we sought to end this ‘conflict, confu-

sion and uncertainty.’ 471 U.S. at 266, 105 S.Ct.

at 1941. Recognizing the problems inherent in

the case-by-case approach, we determined that

42 U.S.C. § 1988 requires courts to borrow and

apply to all § 1983 claims the one most analo-

gous state statute of limitations. Ibid. See id., at

275, 105 S.Ct. at 1946 (“[flederal interests in

uniformity, certainty, and the minimization of

unnecessary litigation all support the conclusion

that Congress favored this simple approach”);

see also id., at 272, 105 S.Ct. at 1945 (“[A] simple,

broad characterization of all § 1983 claims best

fits the statute’s remedial purpose”). We con-

cluded, based upon the legislative history of

~

§ 1983 and the wide array of claims now

= <<. —s-

embraced by that provision, that § 1983 ‘con-

fer[s] a general remedy for injuries to personal

rights.’ Id. at 278, 105 S.Ct. at 1948. Because

Ԥ 1983 claims are best characterized as personal

injury actions,’ we held that a State’s personal

injury statute of limitations should be applied to

all § 1983 claims. Id. at 280, 105 S.Ct. at 1949.

Id. at 240-241.

This Court stated in Owens that “our task today is to

provide courts with a rule for determining the appropri-

ate personal injury limitation statute that can be applied

with ease and predictability in all fifty states.” Id. at 243.

This Court further noted that “every state has one general

or residual statute of limitations governing personal

injury actions” and definitively held that:

Where state law provides multiple statutes of

limitations for personal injury actions, courts

considering § 1983 claims should borrow the

genera. or residual statute for personal injury

actions.

Id. at 250 (emphasis supplied). This Court further stated

that:

Our dicision in Wilson promised an end to the

confuson over what statute of limitations to apply to

§ 1983 actions; with today’s decision, we hope to

fulfill Wilson's promise.

ld. at 251 emphasis supplied).

Accorcingly, the Supreme Court of Georgia was

clearly corect in holding that the two-year statute of

limitations in O.C.G.A. § 9-3-33 governs claims brought

under 42 LS.C. § 1983 and does not violate any federal

law. The phin purpose of the aforementioned case law as

10

to “end the confusion over what statute of limitations to

apply to § 1983 actions.” Owens, 488 U.S. at 251. In fact,

application of the limitations period in the Georgia Tort

Claims Act would affect the very result this Court

expressly intended to avoid. The Georgia Tort Claims Act

applies only to state officials and does not apply to

county, city or other local government officials. Therefore,

applying O.C.G.A. § 50-21-27(b) to 42 U.S.C. § 1983 claims

would result in an extended limitations period against

state officials only and only for claims arising between

January 1, 1991 and July 1, 1992. See O.C.G.A.

§ 50-21-27(b). Thus, any claims against local government

officials and claims against state officials which arose

outside of this limited period, would be subject to a two-

year statute of limitations, a period different from the

two-and-one-half-year extended limitations period under

the Act. Thus, the very confusion this court expressly

intended to resolve in Wilson and Owens, would be

revisited upon Georgia litigants and would actually work

a form of reverse discrimination upon state officials.

The reason underlying the extension of the two-year

Statute of limitations period under the Georgia Tort

Claims Act is equally inapposite to Petitioner’s cause.

The two-year statute of limitations was extended for tort

claims arising between January 1, 1991 and July 1, 1992

under the Georgia Tort Claims Act based upon legislative

delay. In 1991, the voters of the State of Georgia ratified a

Constitutional Amendment re-establishing the State’s

sovereign immunity. See Ga. Const. 1983, Art. I, Sec. II,

Para. IX(e). This Amendment became effective on January

1, 1991 and authorized Georgia’s General Assembly to

enact a state tort claims act. Although the Legislature

11

failed to pass such an act during the 1991 legislative

session, the Georgia Tort Claims Act was finally passed

during the 1992 session. Simply because Petitioner may

reap the benefit of the legislative delay with respect to

her state tort claims, she is not thereby also entitled to

any extension of the limitations period with respect to her

federal claim.

Petitioner’s argument is even more ridiculous in light

of the fact that the Georgia Department of Corrections,

the only named Defendant/Respondent in Ms. Doe’s

action, is not even a proper “person” within the meaning

of 42 U.S.C. § 1983. Any analysis concerning the statute of

limitations is therefore completely irrelevant in the within

case. Moreover, Petitioner’s thinly veiled attempt to cir-

cumvent the two-year statute of limitations was not toler-

ated in the Georgia courts and should not be

countenanced by this Court. Petitioner always had a right

to file her 42 U.S.C. § 1983 claim against a proper defen-

dant in a timely manner. Her claim is barred by her own

failure to do so and not by any act of the Georgia

Supreme Court.

The cases cited by Petitioner are not applicable to the

within case and even provide support for denying her

Petition. In Board of Regents of the University of the State of

New York v. Tomanio, 446 U.S. 478 (1980), the plaintiff

brought a lawsuit pursuant to 42 U.S.C. § 1983 and the

District Court held that a federal tolling rule should

apply during pendency of the plaintiff’s state court litiga-

tion. Tomanio, 446 U.S. at 482. The State of New York had

a rule tolling the period of time in which to file an action

while the plaintiff pursues a related but independent

cause of action. Id. at 482, 483. This Court held that the

12

courts must apply the analogous New York statute of

limitations and the New York rule for tolling that statute

of limitations. Id. at 483. The Court noted that Congress

did not establish a statute of limitations or body of tolling

rules applicable to federal court actions under § 1983 and

that the analogous statute of limitations and the coordi-

nate tolling rules are binding rules of law in most cases

unless they are “inconsistent” with federal law. Id. at 484,

485.

O.C.G.A. § 9-3-33 includes its own tolling provisions.

See O.C.G.A. § 9-3-90 through § 9-3-98. In this regard see

Camps v. City of Winder, 822 F.Supp. 724 (M.D. Ga. 1993)

holding that the Georgia two-year statute of limitations

period for personal injuries under O.C.G.A. § 9-3-33

applies to § 1983 claims and that state tolling provisions

of § 9-3-90(a) apply to § 1983 claims as well. Camps, 822

F.Supp. at 729, citing Wilson v. Garcia, supra. There is no

contention in the present case that the tolling provisions

of § 9-3-33 do not apply. Pursuant to Wilson and Owens,

§ 9-3-33 must be applied and Tomanio does not provide

any authority otherwise. Moreover, O.C.G.A.

§ 50-21-27(b) is not a tolling provision. It does not sus-

pend the limitations period, but rather, extends it under

limited circumstances. Therefore, Petitioner’s insistence

that this provision is a tolling statute, and that law per-

taining tolling provisions applies herein, is totally

unfounded.

The case of Hardin v. Straub, 490 U.S. 536 (1989) is

equally inapplicable to this case. In Hardin, the Michigan

Legislature had enacted tolling provisions tolling the

onset of limitations periods for prisoners and others suf-

fering from legal disabilities. Hardin, 490 U.S. at 540. The

13

Court held that “a state’s decision to toll the statute of

limitations during the inmate’s disability does not frus-

trate § 1983’s compensation goal.” Id. at 543. The Court of

Appeals for the Sixth Circuit had held that Michigan’s

tolling law was inconsistent with federal law and

declined te apply it. Id. at 543. As stated previously,

O.C.G.A. § 9-3-33 has its own coordinate tolling provi-

sions and there is no challenge to these provisions from

the Petitioner. There is no issue in this case of whether

the Petitioner’s lawsuit was tolled during her incarcera-

tion, which was repealed as a tolling provision under

Georgia law many years ago.

In Howlett v. Rose, 496 U.S. 356 (1990), the isolated

issue before this Court was “whether a state law defense

of sovereign immunity is available to a school board

otherwise subject to suit in a Florida court even though

such a defense would not be available if the action had

been brought in a federal forum.” Howlett, 496 U.S. at 358.

In Howlett the plaintiff brought a § 1983 claim in state

court against the local school board and three school

officials. Id. at 359. The court dismissed the complaint on

the basis of a Florida Supreme Court decision, Hill v.

Department of Corrections, 513 So.2d 129 (1987), holding

that a Florida statute conferred blanket immunity on

government entities from federal civil rights actions

under § 1983. Id. at 364.

Howlett is distinguishable based on the fact that the

defendants in that case were the local school board and

three school officials, not state officials. In addition, How!-

ett actually supports Respondent’s position by reinforcing

the clear principle that the State and departments of the

State are not “persons” within the meaning of § 1983 as

14

held in Will, supra. The Georgia Department of Correc-

tions, as an arm of the State, is not a “person” and is not

subject to suit under § 1983 in either federal or state

court.

The case of Hughes v. Sheriff of Fall River County Jail,

814 F.2d 532 (8th Cir. 1987) is also readily distinguishable

from the case at bar. In that case, South Dakota included a

provision in its statute of limitations tolling provision

stating that it was “inapplicable to federal civil rights

claims.” Hughes, 814 F.2d at 533. The Court noted that the

State had “singled out federal claims subjecting them to

more restrictive tolling provisions than those governing

analogous state law claims” and held that this was

“inconsistent with federal law.” Id. at 535. In the present

case, Petitioner does not argue that O.C.G.A. § 9-3-33 is

inconsistent with federal law because its tolling provision

includes any such provision. There is no challenge to the

tolling provisions of O.C.G.A. § 9-3-33 and no evidence of

any applicable tolling provision of this statute stating that

it is “inapplicable to federal civil rights claims.”

In Dixon v. Chrans, 986 F.2d 201 (7th Cir. 1993), the

State of Illinois had a statute stating that the period for

bringing a civil rights action against the Illinois Depart-

ment of Corrections is not tolled for the time that the

inmate bringing the action is in prison. Dixon, 986 F.2d at

202. Under state law, imprisonment was once considered

a legal disability but that disability was removed for

people in prison on criminal charges with respect to

claims against the Illinois Department of Corrections or

its employees. Id. at 202. The Court held that the State

may not confer a tolling benefit and withhold it with

15

respect to claims brought against certain government offi-

cials when the result is to burden the federal cause of

action. Id. at 205. The State of Georgia has no such tolling

provision in O.C.G.A. § 9-3-33 and this is not even an

issue in this case.

Petitioner’s attachment of the Press Advisory on p.

29a is entirely inappropriate. The document was not a

part of her Complaint, not properly part of the record on

appeal and should not be included in this Court record

either. There has been no finding either criminally or

otherwise that the statements in the Press Advisory apply

to Petitioner. In fact, the restraint procedure used by the

mental health staff of the Department of Corrections has

been conclusively established as constitutional in another

case wherein the United States District Court for the

Middle District of Georgia granted summary judgment to

all the defendants on all of the plaintiff’s claims. Campbell

v. Duncan, Civil Action No. 5:94-CV-345-3. Nearly all of

the other cases filed by individual “Jane Does” have been

either dismissed on summary judgment or voluntarily

dismissed by the plaintiff. Jane Doe #28, Civil Action No.

94-208-3-MAC (WDO) (MD Ga.) and Jane Doe #45, Civil

Action No. 94-389-1-MAC (WLS) (MD Ga.), both dis-

missed on summary judgment; and Jane Doe #90, Civil

Action No. 94A-90405-4 (Georgia State Court, DeKalb

County), Jane Doe #39, Civil Action No. 93-405-1-MAC

(WDO) (MD Ga.), and McAteer, Civil Action No. 94-

CV-57-4-MAC (WDO) (MD Ga.), dismissed voluntarily by

the plaintiffs.

The Petition for Writ of Certiorari in this case is

contrary to the well established precedent of this Court.

The Respondent is not a “person” within the meaning of

16

42 U.S.C. § 1983 and is not subject to Section 1983 liability

as a matter of law. Similarly, it is well established that the

two-year general statute of limitations in Georgia, found

at O.C.G.A. § 9-3-33 which applies to all litigants in

Georgia on tort claims is the proper statute of limitations

in Petitioner’s Section 1983 claim. It is essential for pur-

poses of uniformity, predictability and clarity that

O.C.G.A. § 9-3-33 applies, rather than the limited statute

of limitations period found in the Georgia Tort Claims

Act, O.C.G.A. § 50-21-27(b), which applies only to state

officials, concerning only claims which arose between Jan-

uary, 1991 and July, 1992.

CONCLUSION

For the foregoing reasons, Respondent respectfully

requests that this Honorable Court deny Petitioner’s Writ

of Certiorari.

This 27th day of February, 1998.

Respectfully submitted,

THURBERT E. BAKER 033887

Attorney General

KATHLEEN M. Pacious 558555

Deputy Attorney General

JOHN C. Jones 401250

Senior Assistant Attorney General

DIANE Festin LARoss 430830

Assistant Attorney General

RatpH W. E us 295840

Assistant Attorney General

17

Please Address All

Communications To:

JOHN C. Jones

40 Capitol Square, S.W.

Atlanta, GA 30334-1300

(404) 656-3356