Lawson v. Glover

• Citation: 957 F.2d 801
• Decision Date: 02 December 1987
• Docket Number: No. 86-8453,86-8453
• Parties: Jerry LAWSON, Plaintiff-Appellant, v. Frank GLOVER, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 801

957 F.2d 801

Jerry LAWSON, Plaintiff-Appellant, v. Frank GLOVER, et al., Defendants-Appellees.

No. 86-8453.

United States Court of Appeals Eleventh Circuit.

Dec. 2, 1987.

E. Ronald Garnett, Augusta, Ga., for plaintiff-appellant.

Clay Stebbins, III, James B. Wall, Augusta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Georgia.

Before KRAVITCH and EDMONDSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

Plaintiff in a 42 U.S.C. § 1983 action appeals from the district court's order dismissing his complaint as untimely. Because we conclude that the district court incorrectly interpreted and applied the relevant Georgia law, we reverse and remand.

I.

On February 5, 1984, appellant Jerry Lawson was shot in the buttocks by appellee Frank Glover, an Augusta, Georgia police officer. Lawson was taken to the hospital where his wounds were treated. While in the hospital being treated for these injuries, Lawson allegedly exhibited signs of mental disturbance. The doctors requested that Lawson undergo psychiatric evaluations but Lawson refused to cooperate.

On May 31, 1984 Lawson was again hospitalized for treatment of the bullet wound. During this hospitalization, the bullet fragment in Lawson's left hip was removed. According to the hospital reports attached to Lawson's response to defendants' motion to dismiss, Lawson was placed under general anesthesia while this procedure was being performed.

Subsequently, Lawson was incarcerated in the Augusta City Stockade. The first incarceration ran from July 10 to August 20, 1984; he was again incarcerated between April 22 and May 5, 1985.

On February 6, 1986, Lawson filed the instant section 1983 complaint against appellee Glover, various officials of the City of Augusta, Georgia (the City), and the City itself, seeking recovery under 42 U.S.C. § 1983 for Glover's alleged use of unreasonable force on February 5, 1984.

The defendants filed a motion to dismiss for failure to state a claim upon which relief could be granted, alleging that Lawson's action was time barred. ¹ In response, the plaintiff asserted that the action was not barred because the Georgia statute of limitations would be tolled under the facts of this case. More specifically, the plaintiff alleged that the statute was tolled due either to his imprisonment, his physical and mental incapacity, or because he filed an ante litem notice with the City. To support these allegations, the plaintiff attached to his response hospital records showing that following the accident he was hospitalized on two separate occasions for a total of about two weeks; the records of the second hospitalization reveal, among other things, that Lawson was under general anesthesia for at least part of one day. Lawson also attached letters from his attorney to the Clerk of the City Council and the Mayor notifying them that he would be suing them for damages sustained as a result of the February 5, 1984 incident. The letter to the Clerk of the City Council was dated March 8, 1984, and the letter to the Mayor was dated April 9, 1984. ²

The district court determined that the applicable statute of limitations is the two year Georgia statute for personal injury claims. O.C.G.A. § 9-3-33. Observing that the Georgia statute of limitations begins to run on the day the injury occurs, the district court found that, absent a toll, Lawson's action ran afoul of the Georgia statute by one day. After rejecting Lawson's various claims to a toll, the court dismissed the complaint. ³

Lawson then filed a motion for reconsideration; with this motion he submitted additional medical evidence and an affidavit in which he alleged that, as a result of the shooting, he was mentally and physically incompetent for a period of three weeks. The district court denied the motion; this appeal followed.

II.

Lawson does not contest the district court's conclusion that his section 1983 action is governed by Georgia's two year statute of limitations for personal injury claims, O.C.G.A. § 9-3-33. See Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 1942, 1948-49, 85 L.Ed.2d 254 (1985) (section 1983 claims are governed by the relevant state's statute of limitations for personal injury claims). Nor does appellant contend that the district court was incorrect in concluding that, absent a toll, he ran afoul of the time limitations of O.C.G.A. § 9-3-33 by one day. See Everhart v. Rich's, Inc., 229 Ga. 798, 802, 194 S.E.2d 425, 428 (1972); see also Daniel v. Georgia R.R. Bank & Trust Co., 255 Ga. 29, 334 S.E.2d 659, 661 (1985) (statute of limitations on plaintiff's negligent arrest claim began to run on the day of the arrest). Rather, Lawson argues that the district court erred in holding that the statute was not tolled, for even one day, pursuant to O.C.G.A. §§ 9-3-90, 9-3-91 by virtue of either Lawson's alleged physical and mental incapacity or his incarceration, or pursuant to O.C.G.A. § 36-33-5 as a result of his filing of an ante litem notice with the City of Augusta.

A. Tolling Due to Imprisonment

Lawson contends that the district court was incorrect in rejecting his claim that the statute of limitations was tolled during his various imprisonments. Specifically, Lawson argues that his first stay in the hospital was in reality an imprisonment and therefore the statute should have been tolled during that period; he also claims that the statute should have been tolled during his subsequent periods of incarceration in the Augusta City Stockade.

We conclude that the district court properly rejected this argument. Assuming arguendo that Lawson's hospitalization was an imprisonment, see Acker v. Elberton, 176 Ga.App. 580, 336 S.E.2d 842, 845 (1985), we conclude that neither this hospitalization nor Lawson's subsequent imprisonment effected a tolling of the statute of limitations pursuant to O.C.G.A. §§ 9-3-90, 9-3-91.

Lawson's claim that the statute was tolled due to his imprisonments is based on former O.C.G.A. § 9-3-90, which provided that:

[m]inors, persons who are legally incompetent because of mental retardation or mental illness, or persons imprisoned, who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons. (Emphasis added).

In 1984, however, section 9-3-90 was amended and the words "or persons imprisoned" were deleted from the statute. The amendment was effective on July 1, 1984.

Lawson argues that the old, not the amended statute, governs his case because his cause of action arose prior to July 1, 1984. We conclude that this argument is without merit, given the express language of the amendment. For, in addition to deleting the words "or persons imprisoned," the Georgia legislature added subsection (b), a retroactivity provision. ⁴ Subsection (b) provides that:

[N]o action accruing to a person imprisoned at the time of its accrual which, prior to July 1, 1984, has been barred by the provisions of this chapter relating to limitations of actions shall be revived by this chapter, as amended. No action accruing to a person imprisoned at the time of its accrual which would be barred before July 1, 1984, by the provisions of this chapter, as amended, but which would not be so barred by the provisions of this chapter in force immediately prior to July 1, 1984, shall be barred until July 1, 1985. O.C.G.A. § 9-3-90(b). (Emphasis added).

Although the Georgia Supreme Court has yet to interpret this provision, the court construed a similarly worded retroactivity provision in another statute of limitations as rendering the new statute of limitations applicable to all actions viable as of the effective date of the new statute, with a one year grace period for those actions that would become time-barred by the application of the new rule. Allrid v. Emory University, 249 Ga. 35, 285 S.E.2d 521, 524 (1982).

We conclude that subsection 9-3-90(b) should be similarly interpreted. ⁵ Accordingly, we affirm the district court's ruling that the imprisonment tolling provisions of former O.C.G.A. § 9-3-90 do not result in a tolling of the statute of limitations in the instant case. The grace period for imprisonment tolling claims based on imprisonments occurring prior to July 1, 1984, expired on July 1, 1985. See O.C.G.A. § 9-3-90(b). As Lawson's complaint was filed after the expiration of this grace period, the "imprisonment" tolling provisions of former O.C.G.A. § 9-3-90 have no effect on the applicable limitations period for Lawson's action. ⁶

B. Tolling Due to Physical and Mental Incapacity

Lawson also argues that the district court erred in granting the appellees' motion to dismiss on statute of limitations grounds because the running of the statute was tolled for at least the requisite one day pursuant to O.C.G.A. §§ 9-3-90, 9-3-91, due to Lawson's mental and physical incapacity.

In his response to appellees' motion to dismiss, Lawson alleged that the statute of limitations was tolled because "as a result of the injury caused by defendants, the plaintiff was physically and mentally incapacitated and was incompetent to manage his own affairs...." Appellees replied arguing that O.C.G.A. § 9-3-90 requires a showing (1) that plaintiff was "legally incompetent," (2) because of "mental retardation" or "mental illness" as defined in Title 37 of the Georgia Code. Accordingly, appellees contended that plaintiff could not withstand their motion to dismiss because plaintiff had not alleged either that he had been declared "legally incompetent" or that he was "mentally retarded" or "mentally ill."

The district court, without explaining what standard it was applying, granted appellees' motion to dismiss, stating simply that " [t]he facts alleged by plaintiff indicated that he was hospitalized, but this does not constitute "incapacity" as intended by O.C.G.A. § 9-3-90 (Su...