Nasir v. Gwinnett Cnty. State Court, A16A1611

• Decision Date: 16 March 2017
• Docket Number: A16A1611
• Citation: 341 Ga.App. 63,798 S.E.2d 695
• Parties: NASIR v. GWINNETT COUNTY STATE COURT et al.
• Court: Georgia Court of Appeals

341 Ga.App. 63

798 S.E.2d 695

NASIR

v.GWINNETT COUNTY STATE COURT et al.

A16A1611

Court of Appeals of Georgia.

March 16, 2017

Hamidullah Nasir, for Appellant.

Theresa Ann Cox, for Appellee.

McFadden, Presiding Judge.

Hamidullah Nasir filed a pro se action and named as defendants the Gwinnett County State Court, the Gwinnett County Solicitor General, and the Gwinnett County Police Department (collectively, "the defendants"), seeking restriction of access to his criminal record under OCGA § 35-3-37 and monetary damages for civil rights violations under 42 USC §§ 1983, 1985, and 2000d in connection with the proceedings that led to his criminal record. The trial court dismissed the action for failure to state a claim. We affirm, because Nasir was not entitled to restriction of access to his criminal record and because his civil rights claims are either premature or barred by the statute of limitations.

"On appeal, a trial court's ruling on a motion to dismiss for failure to state a claim for which relief may be granted is reviewed de novo and the pleading challenged, i.e., the [complaint], is construed in favor of the party who filed it." Northway v. Allen , 291 Ga. 227, 229, 728 S.E.2d 624 (2012) (citation omitted). As our Supreme Court has explained,

a motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

GeorgiaCarry.Org v. Atlanta Botanical Garden , 299 Ga. 26, 28 (1), 785 S.E.2d 874 (2016) (citation and punctuation omitted). "The main consideration of such a motion to dismiss is whether, under the assumed set of facts, a right to some form of legal relief would exist." Northway , supra at 229, 728 S.E.2d 624 (citation and punctuation omitted).

The facts are largely undisputed. In 1999, Nasir was charged with five counts of misdemeanor theft by taking, and thereafter he entered a nolo contendere plea to one count and the state nolle prossed the remaining four counts. Subsequently, Nasir unsuccessfully tried to get his criminal record expunged multiple times, with his most recent request in August 2013.

In his complaint, Nasir sought to "have his record sealed or expunged such that his name does not appear in any data base relative to a reporting agency that would affect his ability for promotions" (the expungement claim) and he sought damages under 42 USC § 1983"that would equal to the annuity as if he would have been entitled to" apply for promotions at his current employment (the civil rights claims). In support of this requested relief, he alleged in his complaint multiple acts of judicial, prosecutorial, and attorney misconduct related to his plea, including that he was coerced into the plea, that he did not understand the terms of the plea, that the state relied on manufactured evidence and discriminated against him because of his ethnic background, and that his defense counsel was ineffective.

The defendants moved to dismiss, arguing that they were not legal entities capable of being sued; that they received insufficient service of process; that the statute of limitations barred Nasir's claims; that Nasir's request to expunge his criminal record did not meet the statutory requirements of OCGA § 35-3-37 for expungement; and that Nasir's complaint amounted to "an impermissible collateral attack on his conviction." The trial court dismissed the complaint as failing to state a claim for which relief may be granted, specifically finding that no provision of OCGA § 35-3-37 permitted the expungement of Nasir's criminal record and that the statute of limitations barred Nasir's civil rights claims. As detailed below, we find no error in the trial court's judgment. (For this reason, we need not address the merits of the alternative grounds that the defendants raised in support of their motion to dismiss.)

1. Restriction of criminal records.

In several enumerations of error, Nasir essentially argues that the trial court erred in finding that he was ineligible for expungement of his criminal records under OCGA § 35-3-37, which is within our criminal history record information statute, OCGA § 35-3-30 et seq. Providing for "restriction" rather than "expungement," OCGA § 35-3-37 provides that, under certain circumstances, "the criminal history record information of an individual relating to a particular charge ... shall not be disclosed or otherwise made available to any private persons or businesses pursuant to Code Section 35-3-34 or to governmental agencies or licensing and regulating agencies pursuant to Code Section 35-3-35." OCGA § 35-3-37 (a) (6).

The statute directs that access to "an individual's criminal history record information" shall be "restricted" for certain specified "types of dispositions." OCGA § 35-3-37 (h). A disposition where "all charges were dismissed or nolle prossed" is one of those. OCGA § 35-3-37 (h) (2) (A).

Four of the five counts of theft by taking with which Nasir was charged were dismissed. But he pled nolo contendere to the fifth and was sentenced accordingly. See OCGA § 17-7-95 (b).

Imposition of a sentence upon a plea of nolo contendere is not a dismissal or a nolle prosse. So OCGA § 35-3-37 (h) (2) (A) is not applicable. Because Nasir is not entitled to restriction of his record under OCGA § 35-3-37 (h) (2) (A) in the first instance, we need not consider the applicability of any of the exceptions to restriction set forth in OCGA § 35-3-37 (i). And none of the other "types of dispositions" specified in OCGA § 35-3-37 (h) apply to the facts of this case, as alleged in Nasir's complaint.

Consequently, the allegations of his complaint "disclose with certainty" that Nasir "would not be entitled to [expungement or restriction of his criminal record] under any state of provable facts asserted in support" of his complaint; and the defendants have established that Nasir "could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of [that] relief[.]" GeorgiaCarry.Org , supra, 299 Ga. at 28, 785 S.E.2d 874.

2. Civil rights claims.

In several other enumerations of error, Nasir essentially argues that the trial court erred in dismissing his civil rights claims, which Nasir based on his allegations of various misconduct in connection with his plea in the criminal proceeding. The trial court did not err in dismissing those claims.

A plaintiff cannot, in a civil rights action, "recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid," without showing that the conviction or sentence has been invalidated in some manner. Heck v. Humphrey , 512 U.S. 477, 486-487 (II), 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (footnote omitted). "A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983." Id. at 487, 114 S.Ct. 2364 (emphasis omitted).

It is undisputed that Nasir's criminal disposition has not been invalidated, and he did not allege otherwise in his complaint. Therefore, any claims arising from his arrest and prosecution are barred by Heck . Greater Atlanta Homebuilders Assn.v. DeKalb County , 277 Ga. 295, 299 (4), 588 S.E.2d 694 (2003) ; Gould v. Patterson , 253 Ga.App. 603, 605 (4), 560 S.E.2d 37 (2002). Accordingly, the trial court properly dismissed those civil rights claims. See Craigo v. Azizi , 301 Ga.App. 181, 187 (3), 687 S.E.2d 198 (2009) (dismissal of complaint affirmed under right for any reason rule).

Reading the complaint generously in light of Nasir's pro se status, it can be said that one of his civil rights claims is for damages for unlawfully denying his request to restrict or expunge his record. To the extent this claim is not barred by Heck , the trial court nonetheless properly dismissed it because it is barred by the running of the statute of limitation.

Nasir's request to restrict or expunge his record was first denied, at the latest, in 2006. So his December 20, 2013, complaint was filed outside any statute of limitation applicable to this claim. See OCGA § 9-3-33 ; Doe # 102 v. Dept. of Corrections , 268 Ga. 582, 583 (2), 492 S.E.2d 516 (1997) (applying two-year statute of limitation to claims under 42 USC § 1983 ); Wimberly v. Dept. of Corrections , 210 Ga.App. 57, 58, 435 S.E.2d 67 (1993) (applying two-year statute of limitation to claims under 42 USC §§ 1983, 1985 ); Rozar v. Mullis , 85 F.3d 556, 561 (II) (B) (11th Cir. 1996) (applying Georgia's two-year statute of limitation to claims under 42 USC §§ 1985, 2000d ).

Judgment affirmed.

Bethel, J., concurs. Dillard, P.J., Branch and McMillian, JJ., concur fully and specially. Ellington, P.J., Mercier and Reese, JJ., concur in the judgment only. Miller, P.J., concurs in the judgment only as to Division 2, and dissents as to Division 1.

McMillian, Judge, concurring specially.

Although I concur fully in the majority's opinion, I write separately to explain why the plain language of OCGA § 35-3-37 does not support the conclusion reached by the dissent.

With respect to Nasir's request to restrict his criminal record under OCGA § 35-3-37, our law generally provides public access to "criminal history record information," which is defined in OCGA § 35-3-30 (4) (A) as "information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, detentions, indictments, accusations, information, or other formal charges, and any disposition arising therefrom, sentencing, correctional supervision, and release." (Emphasis supplied.) See OCGA §§ 35-3-34 ; 35-3-35....