Parker, et al v. Gallegos, et al

Filing 13

ORDER AND OPINION granting 7 DeKalb County's Motion to Dismiss. The federal claims in the complaint are dismissed with prejudice. To the extent plaintiffs intend to assert any state law claims, those claims are dismissed without prejudice. Signed by Judge Julie E. Carnes on 1/25/13. (ddm) Modified on 1/28/2013 to correct text (ddm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MARILYN L. PARKER and RICHARNEA
LOVELL,
Plaintiffs,
CIVIL ACTION NO.
v.

1:12-cv-1551-JEC

DERYCK L. GALLEGOS,
Individually and in his
Official Capacity as a Law
Enforcement Officer of DeKalb
County, Georgia, and DEKALB
COUNTY, GEORGIA, a Political
Subdivision,
Defendants.
ORDER & OPINION
This case is before the Court on defendant DeKalb County’s
Motion to Dismiss [7].
arguments

of

the

The Court has reviewed the record and the

parties

and,

for

the

reasons

set

out

below,

concludes that DeKalb County’s Motion to Dismiss [7] should be
GRANTED.
BACKGROUND
This § 1983 action arises out of the allegedly unlawful search
and seizure of plaintiffs’ home by DeKalb County police officer
Deryck Gallegos.
21, 2008.

(Id.)

(Compl. [2] at ¶ 21.)

The search occurred on April

According to plaintiffs, Gallegos entered their

home on that date without any reasonable suspicion of criminal

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activity and in the absence of probable cause.

(Id.)

Following the

search, plaintiffs were illegally detained and subjected to battery
and excessive force by Gallegos.

(Id. at ¶ 22.)

then maliciously prosecuted for disorderly conduct.

Plaintiffs were
(Id. at ¶ 23.)

All of the charges against plaintiffs ultimately were dismissed.
(Compl. [2] at ¶ 23.)
Plaintiffs originally filed suit against defendants in DeKalb
County State Court on April 21, 2010.
Ex.

A.)

In

an

apparent

attempt

(Def.’s Mot. to Dismiss [7] at
to

avoid

removal,

plaintiffs

emphasized in the state court complaint that they were seeking relief
“under state law only.”

(Id. at 6 (emphasis in original).)

DeKalb

County filed a motion to dismiss the state court complaint on the
ground of sovereign immunity.
Dismiss

(“Def.’s

Br.”)

[7]

(Def.’s Br. in Supp. of Mot. to
at

2.)

In

response,

plaintiffs

voluntarily dismissed the complaint without prejudice on November 3,
2011.

(Def.’s Mot. [7] at Ex. B.)
Plaintiffs subsequently filed this action in federal court on

May 3, 2012, asserting federal constitutional violations and seeking
relief under § 1983.

(Compl. [2].)

DeKalb County contends that the

federal action is precluded by the statute of limitations.
Br. [7] at 3-5.)

(Def.’s

The County argues further that the action is barred

as a result of plaintiffs’ failure to pay costs in the dismissed

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state court suit.

(Id. at 6.)

Based on these grounds, the County

moves to dismiss the complaint under Rule 12(b)(6).

(Id. at 3-6.)

DISCUSSION
I.

RULE 12(b)(6) STANDARD
In deciding a motion to dismiss under Rule 12(b)(6), the Court

assumes that all of the allegations in the complaint are true and
construes all of the facts in favor of the plaintiff.
Scott, 610 F.3d 701, 705 (11th Cir. 2010).

Randall v.

That said, in order to

survive a motion to dismiss a complaint “must contain sufficient
factual matter, accepted as true, to ‘state a claim [for] relief that
is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A claim is not plausible, and is subject to dismissal under Rule
12(b)(6), if it is “‘apparent from the face of the complaint that the
claim is time-barred.’”

Arthur v. Thomas, 674 F.3d 1257, 1269 n.9

(11th Cir. 2012)(quoting Bhd. of Locomotive Eng’rs & Trainmen Gen.
Comm. of Adjustment CSX Transp. N. Lines v. CSX Transp., Inc., 522
F.3d 1190, 1194 (11th Cir. 2008)).
II.

STATUTE OF LIMITATIONS
Section 1983 claims are “subject to the statute of limitations

governing personal injury actions in the state where the . . . action
has been brought.”
2011).

DeYoung v. Owens, 646 F.3d 1319, 1324 (11th Cir.

Georgia has a two-year statute of limitations for personal
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injury actions.

Id. and O.C.G.A. § 9-3-33.

The limitations period

begins to run when the facts that would support a cause of action
“are apparent or should be apparent to a person with a reasonably
prudent regard for his rights.”

Rozar v. Mullis, 85 F.3d 556, 561-62

(11th Cir. 1996).
Plaintiffs concede that this case is subject to Georgia’s twoyear statute of limitations.

(Pls.’ Resp. to Defs.’ Mot. to Dismiss

(“Pls.’ Resp.”) [10] at 10.)

Plaintiffs also acknowledge that the

limitations period began to run on April 21, 2008, the date of the
initial

incident

involving

defendant

Gallegos.

(Id.

at

2-3.)

Plaintiffs did not file this complaint until May 3, 2012, over four
years after the incident occurred and two years after the limitations
period expired.
However,

(Compl. [2].)
plaintiffs

argue

that

the

application of Georgia’s renewal statute.
18.)

action

is

timely

by

(Pls.’ Resp. [10] at 9-

The renewal statute provides that:
When any case has been commenced in either a state or
federal court within the applicable statute of limitations
and the plaintiff discontinues or dismisses the same, it
may be recommenced in a court of this state or in a federal
court either within the original applicable period of
limitations or within six months after the discontinuance
or dismissal, whichever is later, subject to the
requirement of payment of costs in the original action.

O.C.G.A. § 9-2-61(a). Plaintiffs filed a state court action based on
the Gallegos incident within the original statute of limitations.
(Defs.’ Mot. to Dismiss [7] at Ex. A.)
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They voluntarily dismissed

that action without prejudice on November 3, 2011.

(Id. at Ex. B.)

Applying the renewal statute, plaintiffs contend that they had until
May 3, 2012 to file this action.

(Pls.’ Resp. [10] at 9-10.)

The Court agrees with defendants that renewal is not available
in this case.

By its plain language, the renewal statute only

applies when “the same” case, having been timely filed and then
dismissed, is recommenced within six months of dismissal.
§

9-2-61(a).

Comparing

the

original

state

complaint

O.C.G.A.
to

the

subsequently filed federal complaint, it is apparent that plaintiffs
are not attempting in this action to recommence “the same” case that
they timely filed in state court.

(Id. and Compl. [2].)

The

complaint plaintiffs filed in state court was expressly limited to
state claims against defendants for, among other things, negligent
hiring and supervision, assault, battery, false imprisonment and
violation of state constitutional rights.
[7] at Ex. A.)
claim

under

(Defs.’ Mot. to Dismiss

The federal complaint, on the other hand, asserts a
§

1983

constitutional rights.

for

violation

of

plaintiffs’

federal

(Compl. [2] at ¶¶ 31, 33.)

Plaintiffs suggest that the renewal statute is nevertheless
applicable because the claims asserted in the state and the federal
complaints are based on the same facts.

(Pls.’ Resp. [10] at 11.)

Neither the state nor the federal courts have interpreted Georgia’s
renewal statute so liberally.

See Shook v. Barrow Cnty. Bd. of

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Comm’rs, Civil Action No. 2:11-CV-128-RWS, 2012 WL 1898838, at *3 n.5
(N.D. Ga. May 23, 2012)(Story, J.)(“in order to be protected by
Georgia’s renewal statute, the [§ 1983] claim must have been made in
the original suit”) and Travis Pruitt & Assocs., P.C. v. Hooper, 277
Ga. App. 1, 6 n.2 (2005)(“a cause of action renewed under O.C.G.A. §
9-2-61(a) must state substantially the same cause of action as the
one it succeeded.”).

Indeed, the only removal case that plaintiffs

cite discredits their interpretation of the statute.

See Goins v.

City of Quitman, Civil Action No. 7:11-cv-117 (HL), 2012 WL 39638, at
*2 (M.D. Ga. Jan. 9, 2012)(Lawson, J.)(“the Court does not interpret
O.C.G.A. § 9-2-61(a) to allow federal claims that were dismissed over
thirteen months prior to be miraculously revived through the renewal
of state law claims dismissed six months earlier”).
The limitations period for this action expired over two years
before the action was filed.

Although plaintiffs filed a timely

state court complaint, they expressly declined in that complaint to
assert a claim under § 1983 or any other provision of federal law.
Plaintiffs’ federal claims are thus ineligible for renewal under
O.C.G.A. § 9-2-61(a).

Accordingly, the Court GRANTS defendants’

motion and DISMISSES the federal claims with prejudice.

To the

extent plaintiffs are attempting to renew the state claims asserted
in

the

original

complaint,

the

Court

declines

to

exercise

jurisdiction over those claims, and DISMISSES them without prejudice.
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See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)("when
the federal-law claims have dropped out of the lawsuit in its early
stages . . . the federal court should decline the exercise of
jurisdiction."). See also Hardy v. Birmingham Bd. of Educ., 954 F.2d
1546, 1550 (11th Cir. 1992)(recognizing the same principle).
III. FAILURE TO PAY COSTS
As an alternative ground for dismissal, defendants note the
absence of any pleading or averment showing that plaintiffs have paid
costs in the dismissed state court lawsuit.
[7] at 6.)

(Defs.’ Mot. to Dismiss

Payment of costs in the previously dismissed action is a

“condition precedent to filing a [renewal] suit.”
249 Ga. 568, 569 (1982).

Couch v. Wallace,

See also O.C.G.A. § 9-11-41(d)(requiring

the plaintiff to pay the costs of any previously dismissed action
before asserting a second action based on or including the same
claim).

However, there is an exception to this rule for costs

“‘unknown to [the] plaintiff after a good faith inquiry.’”

Jeff

Davis Hosp. Auth. v. Altman, 203 Ga. App. 168, 169 (1992)(quoting
Daugherty v. Norville Indus., Inc., 174 Ga. App. 89, 91 (1985)).
In response to the motion to dismiss, plaintiffs assert that
prior to filing this action they inquired about costs in the DeKalb
County Clerk’s Office and were advised that no costs were due.
(Pls.’ Resp. [10] at 19.)

Plaintiffs also affirmatively state that

they have not been assessed any costs by the DeKalb County State
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Court.

(Id.)

Under the circumstances, the Court ordinarily would

permit plaintiffs to amend their complaint to specifically allege the
payment of any costs due in the prior action.

As the Court has

granted defendants’ motion to dismiss, such amendment would be
futile.

However, in the interest of completeness and clarity, the

Court notes that it is not dismissing plaintiffs’ claims for failure
to pay costs as required by the renewal statute, but rather because
the renewal statute is inapplicable.
CONCLUSION
For the foregoing reasons, the Court GRANTS DeKalb County’s
Motion to Dismiss [7].
DISMISSED with prejudice.

The federal claims in the complaint are
To the extent plaintiffs intend to assert

any state law claims, those claims are DISMISSED without prejudice.

SO ORDERED, this 25th day of January, 2013.

/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE

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