Davis v. Green et al
OPINION AND ORDER that Defendant Green's 28 Motion for Judgment on the Pleadings is DENIED. Signed by Judge William S. Duffey, Jr on 3/13/2015. (anc)
with medical assistance after he was assaulted. He claims he suffered permanent
and severe physical and emotional injuries as a result of the alleged assault.
On May 31, 2011, Defendants moved for summary judgment on Plaintiff’s
state law claims for “malicious assault” and “failure to provide medical
On August 16, 2011, Plaintiff amended his State Complaint, to assert a claim
that the January 20, 2010 assault, and the following failure to provide medical
treatment, violated Plaintiff’s rights under the Eighth and Fourteenth Amendments
to the United States Constitution, and Article I, Section I, of the Georgia
Constitution. The Amended State Complaint asserts claims based on federal law
and the Georgia Constitution, unlike the State Complaint, which asserted tort claim
under Georgia law.
On September 20, 2011, Judge Aaron B. Mason of the Superior Court for
Clayton County granted Defendants’ Motion for Summary Judgment on Plaintiff’s
state law claims (the “Summary Judgment Order”). Judge Mason found that
Plaintiff did not meet his evidentiary burden to support Plaintiff’s state law claims
or that he suffered physical and emotional injuries.1 Judge Mason also found that
Judge Mason noted that Plaintiff failed even to depose Defendants during the
Defendants were entitled to qualified immunity because Plaintiff did not present
evidence that Defendants acted with actual malice in committing the claimed
On October 3, 2011, Defendants moved for judgment on the pleadings on
the federal and state constitutional claims in the Amended State Complaint.
Defendants argued that (i) Plaintiff amended his State Complaint to avoid an
adverse ruling on the Motion for Summary Judgment on the state law claims
asserted in his original State Complaint, and (ii) the Amended State Complaint was
futile because Judge Mason granted summary judgment on the claims asserted in
the original State Complaint.
On November 18, 2011, Judge Mason denied Defendants’ Motion for
Judgment on the Pleadings (“Order on Judgment on the Pleadings”). Judge Mason
noted that his Summary Judgment Order did not address the federal and state
constitutional claims raised in the Amended State Complaint and thus, these
federal and state constitutional claims “remained alive.” See Order on Judgment
on the Pleadings, at 1, Davis v. Green, Case No. 2010-CV-475 (November 18,
2011). Judge Mason noted that his Summary Judgment Order did not resolve the
case because Plaintiff amended his State Complaint, and asserted new claims based
on the federal and Georgia constitutions before the Summary Judgment Order was
filed.2 Judge Mason concluded that Plaintiff was allowed, as a matter of right, to
file the claims in his Amended State Complaint because he did so before the
Summary Judgment Order was filed. Id. at 3.
On April 11, 2012, Plaintiff voluntarily dismissed his Amended State
Complaint without prejudice.
On October 11, 2012, Plaintiff filed this action, under 42 U.S.C.
§ 1983, against Defendants Green and Thomas H. Pough, Jr., in their individual
and official capacities (“Federal Complaint”). In his Federal Complaint, Plaintiff
contends that Defendants violated his rights under the Fourth, Fifth, Eighth and
Fourteenth Amendments to the United States Constitution3 because Defendants
assaulted Plaintiff in his cell and failed to provide him with medical assistance
after the assault.4 Plaintiff seeks a judgment against Defendants in the amount of
Plaintiff filed his Amended State Complaint on August 18, 2011, approximately a
month before Judge Mason’s Summary Judgment Order was filed on September
20, 2011. See Order denying Judgment on the Pleadings, at 3, Davis v. Green,
Case No. 2010-CV-475 (November 18, 2011).
Plaintiff did not reassert claims under the Georgia constitution.
Plaintiff contends that Defendants’ “intentional and malicious actions violated
[his] rights under the unlawful search and seizure provisions of the Fourth
Amendment, due process provisions of the Fifth Amendment, cruel and unusual
punishment provision of the Eighth Amendment, and due process, equal protection
and privileges and immunities provisions of the Fourteenth Amendment.”
Renewed Compl. at ¶ 8.
$1,000,000 to compensate for past, present and future medical expenses, physical
and emotional pain, attorneys’ fees and the costs of this litigation.
On March 13, 2013, Defendants moved to Dismiss Plaintiff’s Complaint for
insufficient service of process. On May 15, 2013, Judge J. Owen Forrester granted
the Defendants’ Motion to Dismiss, in part. Judge Forrester found that Defendant
Green was properly served with the summons and Federal Complaint at his
residence. He also found that Defendant Pough was not properly served. Judge
Forrester granted Defendants’ Motion to Dismiss Defendant Pough for insufficient
service of process, but allowed Plaintiff’s claims to proceed against Defendant
Green, in his individual capacity. Judge Forrester dismissed Plaintiff’s claims
against Defendant Green in his official capacity because the Federal Complaint
failed to allege facts to support a claim of official liability.
On May 29, 2014, Judge Forrester administratively closed this case because
the case was inactive for several months. Judge Forrester required the parties to
file a Motion to Vacate within sixty (60) days, warning that a failure to move to
vacate would result in a dismissal of the action with prejudice. On July 28, 2014,
Plaintiff moved to vacate the May 29, 2014, Order. On November 18, 2014, the
Court reopened this matter.
On January 12, 2015, Defendant Green moved for judgment on the
pleadings. Defendant Green argues that Plaintiff’s Federal Complaint should be
dismissed because res judicta bars Plaintiff from litigating his federal claims in this
Court. Defendant Green asserts that (i) the parties to this dispute and the claims
asserted in this action are identical to the parties and the claims asserted in the
original State Complaint, (ii) Plaintiff failed to raise his federal claims in the
original State Complaint, and (iii) Judge Mason’s Summary Judgment Order is a
final judgment on the merits that disposed of the claims asserted or which could
have been asserted in the State Complaint based on the alleged January 20, 2010
assault. Def.’s Mot. for Judgment on the Pleadings at 8-9.
“Judgment on the pleadings is appropriate where there are no material facts
in dispute and the moving party is entitled to judgment as a matter of law.”
Cannon v. City of West Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001).
Motions for judgment on the pleadings based on allegations of a failure to state a
claim are evaluated using the same standard as a Rule 12(b)(6) motion to dismiss.
See Sampson v. Washington Mut. Bank, 453 F. App’x 863, 865 n.2 (11th Cir.
2011); Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d
1293, 1295 n.8 (11th Cir. 2002); Provident Mut. Life Ins. Co. of Phila. v. City of
Atlanta, 864 F. Supp. 1274, 1278 (N.D. Ga. 1994) (“A motion for judgment on the
pleadings is subject to the same standard as is a Rule 12(b)(6) motion to dismiss.”).
In considering a motion for judgment on the pleadings, the allegations
contained in a complaint must be accepted as true and the facts and all inferences
must be construed in the light most favorable to the nonmoving party. See
Scottsdale Ins. Co. v. Pursley, 450 F. App’x 888, 890 (11th Cir. 2012); Hawthorne
v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998). Ultimately, the
complaint is required to contain “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). To
state a claim to relief that is plausible, the plaintiff must plead factual content that
“allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Plausibility” requires more than a “sheer possibility that a defendant has acted
unlawfully,” and a complaint that alleges facts that are “merely consistent with”
liability “stops short of the line between possibility and plausibility of ‘entitlement
to relief.’” Id. (citing Twombly, 550 U.S. at 557).
In determining if a judgment has res judicata effect, the Court applies the res
judicata law of the state that rendered the state court judgment. See Kizzire v.
Baptist Health Sys., Inc., 441 F.3d 1306, 1308 (11th Cir. 2006) (citing 28 U.S.C.
§ 1738). Defendant Green seeks to give res judicata effect to an Order issued by
the the Clayton County Superior Court. Georgia law is required to be applied to
determine if the Summary Judgment Order bars the federal claims in this case.
In Georgia, “[t]hree prerequisites must be satisfied before res judicata
applies—(1) identity of the cause of action, (2) identity of the parties or their
privies, and (3) previous adjudication on the merits by a court of competent
jurisdiction.” Karan, Inc. v. Auto-Owners Ins. Co., 629 S.E.2d 260, 262
(Ga. 2006); see also O.C.G.A. § 9-12-40. Regarding the first element, res judicta
prevents subsequent actions “as to all matters put in issue or which under the rules
of law might have been put in issue” in the original action. O.C.G.A. § 9-12-40.
Georgia courts have interpreted this requirement to mean that “one must assert all
claims for relief concerning the same subject matter in one lawsuit and any claims
for relief concerning that same subject matter which are not raised will be res
judicta pursuant to O.C.G.A. § 9-12-40.” See Fowler v. Vineyard, 405 S.E.2d 678,
682 (Ga. 1991) (internal quotation marks and citations omitted).
The parties do not dispute that the parties and cause of action in this federal
constitutional case are identical to those in the State Court Action.
Defendant Green contends that res judicta bars Plaintiff’s federal claims
because (1) Plaintiff failed to raise his federal claims in the original State
Complaint, and (2) Judge Mason’s Summary Judgment Order is a final judgment
on the merits that disposed of the claims asserted or which could have been
asserted in the State Complaint based on the alleged January 20, 2010 assault.
Def.’s Mot. for Judgment on the Pleadings at 8-9.
Failure to Raise Federal Claims in State Complaint
Plaintiff amended his State Complaint on August 16, 2011. One month
later, on September 20, 2011, Judge Mason issued an Order that granted
Defendants’ Motion for Summary Judgment on Plaintiff’s state law claims for
“malicious assault” and “failure to provide medical assistance.” These claims were
not raised again in Plaintiff’s Amended State Complaint. Under O.C.G.A.
§ 9-11-15(a), a plaintiff is entitled to amend his complaint, as a matter of right,
before the entry of a pre-trial order or prior to the commencement of trial. See
O.C.G.A. § 9-11-15(a). Plaintiff allowably amended his State Complaint before
Judge Mason issued his Summary Judgment Order on Plaintiff’s state law claims.
See Liberty v. Storage Trust Properties, L.P., 600 S.E.2d 841, 845 (Ga. Ct. App.
2004) (citations omitted). The reasoning in Liberty is instructive in evaluating the
impact of the Amended State Complaint that was filed.
In Liberty, the trial court entered summary judgment in favor of the
defendant on plaintiff’s breach of contract claim. Id. at 844. Three hours before
the trial court entered its summary judgment order, plaintiff amended his complaint
to assert a negligence claim. Id. The defendant moved to strike the amended
complaint or, in the alternative, for summary judgment. Id. at 845. On May 1,
2003, the trial court granted summary judgment on plaintiff’s negligence claim on
the ground that the contract barred plaintiff’s negligence claim. Id.
On May 29, 2003, plaintiff filed a notice of appeal from both summary
judgment orders. Id. The defendant moved to dismiss the appeal arguing that
(i) the appeal should have been filed within 30 days from the initial grant of
summary judgment and (ii) the amended complaint was ineffective. Id. The trial
court granted defendant’s motion to dismiss the appeal, finding that plaintiff
attempted to delay the result of the summary judgment order by filing the amended
complaint. The trial court concluded that plaintiff’s delay caused the amended
complaint to be ineffective because the time to file a notice of appeal ran from the
date of the first summary judgment order, and that time had expired. Id. The
Georgia Court of Appeals reversed:
As the new claim of negligence asserted in the amended complaint
was not, and could not have been, addressed by the trial court in the
order it signed the day before the amendment was filed, it remained
pending and the trial court’s first order granting summary judgment
did not dispose of the entire case. Although this order was subject to
a direct appeal by [plaintiff] . . . [plaintiff] was not required to file an
appeal at that time . . . as a result, we reverse the trial court’s order
dismissing [plaintiff’s] appeal.
The reasoning in Liberty applies here. Judge Mason’s Summary Judgment
Order in the State Court Action did not resolve the entire case because it did not
address Plaintiff’s federal claims—the only claims asserted in Plaintiff’s Amended
State Complaint. See Liberty, 600 S.E.2d at 845 In denying Defendants’ Motion
for Judgment on the Pleadings, Judge Mason stated that Plaintiff’s federal claims,
which were not asserted in the State Complaint, “remained alive,” and for this
reason, denied Defendants’ request to dismiss the Amended State Complaint.
An amended complaint supersedes the original complaint. See Fritz v.
Standard Sec. Life Ins. Co. of New York, 676 F.2d 1356, 1368 (11th Cir. 1982);
Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 601 (11th Cir. 1981). If a
complaint is properly amended, a plaintiff has the right to add or remove claims on
which he seeks relief. Id. Defendant Green’s contention that res judicta bars
Plaintiff’s federal claims because he failed to raise his federal claims in the original
State Complaint does not have a viable legal basis. Plaintiff’s failure to raise his
federal claims in the original State Complaint does not bar him from subsequently
asserting the federal claims in an Amended State Complaint or in his Federal
A final judgment must be entered in the prior suit for res judicata to apply.
See Bhindi Bros. v. Patel, 619 S.E.2d 814, 816 (Ga. Ct. App. 2005). “A judgment
is final when it disposes of the entire controversy, leaving nothing for the trial
court to do in the case. The effect of a judicial act and not the trial court’s
characterization of it determines whether it is a final judgment.” Id. (quoting
Atlanta J’s, Inc. v. Houston Foods, Inc., 514 S.E.2d 216, 218 (Ga. Ct. App. 1999)).
“The entry of a judgment as to one or more but fewer than all of the claims or
parties is not a final judgment . . . and lacks res judicata effect unless the trial court
make[s] an express direction for the entry of the final judgment and a
determination that no just reason for delaying the finality of the judgment exists.”
Pierce v. Cessna Aircraft Co., 347 S.E.2d 261, 262 (Ga. Ct. App. 1986); see also
Horn v. Terminal Transport Co., 190 S.E.2d 158, 159 (Ga. Ct. App. 1972) (holding
that res judicata did not apply because the trial court’s order in the previous suit did
not expressly direct that judgment be entered, and its Order was subject to revision
prior to the entry of a final judgment). A Summary Judgment Order that
adjudicates fewer than all of the plaintiff’s claims is not a final judgment. See
Crisler v. Haugabook, 725 S.E.2d 318 n.1 (Ga. 2012).
The Court concludes that res judicata does not apply here because the
Clayton County Superior Court did not enter a final judgment on Plaintiff’s federal
claims. See Pierce, 347 S.E.2d at 262; Horn, 190 S.E.2d at 159. There is no
dispute that the Summary Judgment Order did not address Plaintiff’s federal
claims, and Judge Mason denied Defendant Green’s Motion for Judgment on the
Pleadings because the Summary Judgment Order did not address the federal
constitutional claims asserted by Plaintiff in the Amended State Complaint before
the Summary Judgment Order was entered.
Res judicta also does not apply because, on April 11, 2012, Plaintiff
voluntarily dismissed his Amended State Complaint without prejudice. Under
Georgia law, a voluntary dismissal without prejudice does not constitute an
adjudication on the merits. See Rafizadeh v. KR Snelville, LLC, 634 S.E.2d 406,
410 (Ga. Ct. App. 2006) (reversing the trial court’s determination that plaintiff’s
claim was barred by res judicta because plaintiff voluntarily dismissed the first
action, and the dismissal did not indicate that it was with prejudice).
The Court concludes that the doctrine of res judicata does not prevent
Plaintiff from asserting his federal claims in this action because Plaintiff had a
right to file an Amended State Complaint, and the Clayton County Superior Court
did not issue a final judgment on Plaintiff’s federal claims on the merits.5
IT IS HEREBY ORDERED that Defendant Green’s Motion for Judgment
on the Pleadings is DENIED .
SO ORDERED this 13th day of April, 2015.
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
In his Response to Defendant Green’s Motion for Judgment on the Pleadings,
Plaintiff characterizes Defendant Green’s res judicta argument as “frivolous” and
requests the Court to award him attorneys’ fees in preparing a Response to
Defendant Green’s Motion. Plaintiff has not filed a Motion seeking attorneys’ fees
or submitted evidence of his reasonable attorneys’ fees and expenses incurred in
responding to the Motion for Judgment on the Pleadings.
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