Tattnall Cnty. v. Armstrong

• Decision Date: 13 July 2015
• Docket Number: No. A15A0163.,A15A0163.
• Citation: 775 S.E.2d 573,333 Ga.App. 46
• Parties: TATTNALL COUNTY. v. ARMSTRONG.
• Court: Georgia Court of Appeals

333 Ga.App. 46

775 S.E.2d 573

TATTNALL COUNTY.

v.ARMSTRONG.

No. A15A0163.

Court of Appeals of Georgia.

July 13, 2015.

Joseph D. McGovern, Glenville, Emily Rose Hancock, Paul Michael Scott, Richard Keith Strickland, Brown, Readdick, Bumgarter, Carter, Strickland & Watkins, Brunswick, for Appellants.

John Gary Phillips Jr., Christopher Ron Smith, for Appellee.

Opinion

McMILLIAN, Judge.

This appeal arises from an inmate's allegations that he was not provided access to proper medical care while he was incarcerated at the county jail. Appellee Jacob Armstrong initially filed a complaint asserting state and federal law claims against Quinton Rush, individually and in his official capacity as Tattnall County Sheriff; Jason Howell, individually and in his official capacity as Tattnall County Chief Jailer; John Williams, individually and in his official capacity as a Tattnall County Sheriff's Deputy; and the Tattnall County Sheriff's Office (“Sheriff's Office”). Armstrong's claims were removed to federal court, but after he dismissed the federal claims, the district court remanded the case back to the Superior Court of Tattnall County. Armstrong then filed an amended complaint, which the Sheriff's Office and individual defendants answered, and shortly thereafter filed a motion to add Tattnall County (the “County”) as a party to the proceedings. The trial court granted Armstrong's motion over Tattnall County's objection, and he amended his complaint for a second and third time, asserting violations of two Georgia statutes (OCGA §§ 42–4–4 and 42–5–2 ), and the Georgia Constitution. Tattnall County and the remaining defendants filed motions to dismiss, arguing that Armstrong's claims against the County and the individual defendants in their official capacities were barred by sovereign immunity and, additionally, that the Sheriff's Office was not a legal entity capable of being sued.¹ Armstrong conceded that the Sheriff's Office should be dismissed as a party, but otherwise opposed the motions to dismiss. The trial court dismissed the Sheriff's Office but, citing Cantrell v. Thurman, 231 Ga.App. 510, 499 S.E.2d 416 (1998), refused to dismiss the remaining defendants on sovereign immunity grounds. Pursuant to the collateral order doctrine, see, e.g., Effingham County v. Roach, 329 Ga.App. 805, 805, n. 1, 764 S.E.2d 600 (2014) ; Bd. of Regents v. Canas, 295 Ga.App. 505, 507(1), 672 S.E.2d 471 (2009), the defendants² directly appealed to the Court from the trial court's order. As more fully set forth below, we now overrule Cantrell, and reverse the trial court's denial of defendants' motions to dismiss.

We start with the factual basis for Armstrong's complaint, accepting his well-pleaded material allegations as true.³ In January 2012, Armstrong was incarcerated in the Tattnall County Jail. At that time he was being treated for vision problems, and on January 19, 2012, his treating physician ordered MRIs of Armstrong's brain and cervical and lumbar spine. The defendants failed to ensure that Armstrong obtained his MRIs on January 19 or at any time thereafter.

Approximately a month later, Armstrong passed out at the jail and was transported to the hospital. The doctors at the hospital determined that Armstrong had suffered a stroke and attributed the cause to abscesses on and/or in his brain. Armstrong alleges that if defendants had allowed him to obtain the MRIs that were ordered by his treating physician, these abscesses would have been detected earlier. Accordingly, Armstrong seeks damages for the severe injuries he suffered due to defendants' negligent and intentional failure to provide him access to proper medical care.

1. Against this backdrop, we now turn to the question of whether Armstrong's claim is barred by sovereign immunity. “[O]ur review of this question of law is de novo.” Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, Inc., 294 Ga. 593, 596(2), 755 S.E.2d 184 (2014).

Pursuant to a 1991 amendment to the Georgia Constitution,

... sovereign immunity extends to the state and all of its department and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.⁴

Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). Accordingly, under Georgia law as it presently stands “sovereign immunity has constitutional status, and that immunity may be waived only by an act of the General Assembly or by the Constitution itself.” Ga. Dept. of Corrections v. Couch, 295 Ga. 469, 472(2), 759 S.E.2d 804 (2014). See Center for a Sustainable Coast, 294 Ga. at 599(2), 755 S.E.2d 184 (“plain and unambiguous text of the 1991 constitutional amendment shows that only the General Assembly has the authority to waive the State's sovereign immunity”); Marshall v. McIntosh County, 327 Ga.App. 416, 417(1), 759 S.E.2d 269 (2014) (sovereign immunity can only be waived by a legislative act that specifically provides for a waiver and the extent of such waiver).

Within several years of this constitutional amendment, our Supreme Court definitively determined that the extension of sovereign immunity to “the state and its department and agencies” also includes counties, and that such immunity, also known as governmental immunity, protects county employees who are sued in their official capacities. Gilbert v. Richardson, 264 Ga. 744, 747(2), 452 S.E.2d 476 (1994) ; Cameron v. Lang, 274 Ga. 122, 126(3), 549 S.E.2d 341 (2001) (sovereign immunity applies to public employees sued in their official capacities because these “ ‘are in reality suits against the state’ ”) (citation and punctuation omitted). “ Accordingly, the plain language of Paragraph IX (e) explicitly bars suits against the State or its officers and employees sued in their official capacities, until and unless sovereign immunity has been waived by the General Assembly.” (Footnote omitted.) Center for a Sustainable Coast, 294 Ga. at 599(2), 755 S.E.2d 184.⁵

In contrast, subsection (d) of the 1991 amendment to Art. I. Sec. II, Par. IX establishes a different type of immunity, known as official or qualified immunity when an officer or an employee of the state is sued in his individual capacity.⁶ Banks v. Happoldt, 271 Ga.App. 146, 147(1), 608 S.E.2d 741 (2004).

Under the doctrine of official, or qualified, immunity, a [state officer or employee] may be personally liable for negligent actions taken in the performance of ministerial functions, but [is] immune from personal liability for discretionary acts taken within the scope of their official authority and performed without wilfulness, malice, or corruption.

Gish v. Thomas, 302 Ga.App. 854, 857(1), 691 S.E.2d 900 (2010). Thus, in analyzing a claim of official or qualified immunity, “the single overriding factor is whether the specific act from which liability arises is discretionary or ministerial.” (Citation and punctuation omitted.) Marshall, 327 Ga.App. at 420(3)(a), 759 S.E.2d 269.

Accordingly, as can be readily seen, the doctrines of sovereign immunity and official immunity are examined under entirely different analytical frameworks, and the question of whether the state employee, agent or officer is performing a discretionary as opposed to a ministerial act simply has no place in considering whether a county or a county employee or officer sued in his official capacity is entitled to immunity on state law damages claims under Paragraph IX (e). Hewell v. Walton County, 292 Ga.App. 510, 513(2), 664 S.E.2d 875 (2008) (“a county's sovereign immunity ... applies equally to ministerial and discretionary acts”); Seay v. Cleveland, 270 Ga. 64, 65(1), 508 S.E.2d 159 (1998).

Unfortunately, in Cantrell, 231 Ga.App. at 510, 499 S.E.2d 416 (1998), which, like this case, involved claims based on failure to provide medical care against the sheriff and certain named jail employees in both their official and individual capacities, id. at 510–511, 499 S.E.2d 416, this Court improperly conflated the sovereign/official immunity analysis, and found that “because medical care is a fundamental right and is not discretionary in requiring medical care; ... such act is not subject to either sovereign immunity or official immunity.”⁷ (Emphasis in original.) Id. at 514(4), 499 S.E.2d 416. We perpetuated this error in Middlebrooks v. Bibb County,

261 Ga.App. 382, 384(1), 582 S.E.2d 539 (2003) and in Howard v. City of Columbus, 239 Ga.App. 399, 411(2)(b), 521 S.E.2d 51 (1999) (physical precedent only), by quoting this language, although in Middlebrooks we affirmed the grant of summary judgment to the county on other grounds, 261 Ga.App. at 385(1), 582 S.E.2d 539. And in Howard, we actually undertook the correct analysis in determining whether sovereign immunity protected the county and its employees who were sued in their official capacities by looking only to whether the legislature had waived such immunity for state law negligence claims based on an alleged failure to provide medical care. 239 Ga.App. at 410, 415(2)(a), (4), 521 S.E.2d 51. Although we attempted to explain this confusion in Gish, 302 Ga.App. at 863 –864(4), 691 S.E.2d 900, our efforts obviously fell short since both plaintiffs and trial courts, such as those in this case, continue to rely on this conflated analysis even when faced solely with a claim of sovereign immunity under subsection (e) of Ga. Const. of 1983, Art. I, Sec. II, Par. IX. Accordingly, we take this opportunity to overrule and disapprove Cantrell and Middlebrooks⁸ to the extent those cases can be read to hold that a discretionary/ministerial act analysis should be applied in deciding whether the sovereign immunity of a county or a county employee sued in his official capacity under Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e) has been waived for state tort claims.

Turning back to the facts of this case, Armstrong sued the county and county employees and...