# Opposition Brief — Doe v. Georgia Department of Corrections

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1047

## Text

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.

+

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

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TABLE OF AUTHORITIES

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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.

+

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2140%3A2. Public record. Not legal advice.