Kilgo v. Department of Corrections, A91A1382

• Decision Date: 22 November 1991
• Docket Number: No. A91A1382,A91A1382
• Parties: KILGO v. DEPARTMENT OF CORRECTIONS, et al.
• Court: Georgia Court of Appeals

Page 507

413 S.E.2d 507

202 Ga.App. 50

KILGO v. DEPARTMENT OF CORRECTIONS, et al.

No. A91A1382.

Court of Appeals of Georgia.

Nov. 22, 1991.

Ronald Kilgo, pro se.

Michael J. Bowers, Atty. Gen., John C. Jones, Sr. Asst. Atty. Gen., for appellees.

POPE, Judge.

Plaintiff Ronald Jerry Kilgo, acting pro se, brought this civil action against the Department of Corrections and others alleging defendants were improperly denying him necessary medical and mental health treatment while he was incarcerated at the Valdosta Correctional Institution. The action is, in essence, a claim for damages for deprivation of his civil rights pursuant to 42 USC § 1983. Plaintiff also alleges the acts complained of are a violation of his Eighth Amendment rights.

Defendants answered and moved to dismiss plaintiff's complaint on the ground the claims were barred by the statute of limitation and because the defendants are immune from suit pursuant to the sovereign immunity provisions of the Georgia Constitution, Art. I, Sec. II, Par. IX. Plaintiff filed unsworn copies of his medical records and certain records from the prison, such as his written requests for treatment and the prison officials' responses to those requests. A brief hearing was conducted on March 13, 1991 at which time plaintiff presented no evidence except for his own brief statement and requested a continuance, which was granted. On April 9, however, plaintiff moved for judgment in his favor based on the record and the hearing. The trial court responded with an order denying plaintiff's motion. ¹ Plaintiff appeals.

The order does not reveal the grounds on which the motion for judgment was denied. We reject the defenses raised in defendants' motion to dismiss. The acts alleged in plaintiff's complaint are continuing in nature and, therefore, the statute of limitation defense is not valid. Neither is the defense of sovereign immunity. Sovereign immunity is not a bar to an action alleging violation of a constitutional right (Smith v. Floyd Co., 85 Ga. 420(2), 11 S.E. 850 (1890)) or an action brought pursuant to 42 USC § 1983. See City of Cave Spring v. Mason, 252 Ga. 3, 310 S.E.2d 892 (1984); Davis v. City of Roswell, 250 Ga. 8(1), 295 S.E.2d 317 (1982). However, in order to prevail in such an action, the plaintiff must prove the acts complained of are the result of an intentional policy adopted or ratified by the governing body of a public agency. "What is required to be proved, directly or circumstantially, is that a governing body has worked constitutional deprivation of a citizen pursuant to an impermissible or corrupt policy which is intentional and deliberate." City of Cave Spring v. Mason, supra at 5, 310 S.E.2d 892. Here, "[t]he record is barren of any evidence of implementation of an ... intentionally corrupt or impermissible policy so as to find a cause of action under 42 USC § 1983." (Citation and punctuation omitted.) Pinkston v. City of Albany, 196 Ga.App....