Tillman v. Georgia, 606CV053.

• Decision Date: 29 November 2006
• Docket Number: No. 606CV053.,606CV053.
• Parties: Elliot TILLMAN, Plaintiff, v. State of GEORGIA, et al., Defendants.
• Court: U.S. District Court — Southern District of Georgia

466 F.Supp.2d 1311

Elliot TILLMAN, Plaintiff, v. State of GEORGIA, et al., Defendants.

No. 606CV053.

United States District Court, S.D. Georgia, Statesboro Division.

November 29, 2006.

COPYRIGHT MATERIAL OMITTED

John Paul Batson, Augusta, GA, for Plaintiff.

Devon Orland, Atlanta, GA, Walter W. Ballew, III, Barrow & Ballew, PC, Savannah, GA, for Defendants.

AMENDED ORDER

EDENFIELD, District Judge.

I. INTRODUCTION

Plaintiff Elliot Tillman brings this combined 42 U.S.C. § 1983 and state-law action against East Central Georgia Drug Task Force ("Task Force") Officer Jordan Kight and various defendants charged with training Task Force officers ("training defendants"). Doc. # 1. Tillman asserts violations of his Fourth and Fourteenth Amendment rights stemming from Right's use of a taser to arrest Tillman as he fled from Task Force officers. Id. Tillman also asserts that the same facts support claims under the Georgia Constitution. Id. The training defendants and Right move the Court under F.R.Civ.P. 12(b)(1) & (6) to dismiss Tillman's case for lack of subject matter jurisdiction and for his failure to state a claim. Doc. ## 7, 10. In addition, Right moves to dismiss Tillman's claims as time-barred. Doc. # 10. The Court will address only Right's untimeliness motion in this Order.

II. BACKGROUND¹

On 5/25/04, Right and other Task Force officers gave chase to Tillman on suspicion of a misdemeanor sale of controlled substances. Doc. # 1 at 5, ¶¶ 25-26. They carried tasers issued by the Georgia Bureau of Investigation (GBI) and the Task Force, but the GBI and Task Force provided no training for their use. Id. at 5, ¶¶ 23-24. Right, without warning, shot Tillman in the back with his taser and repeatedly pulled the trigger, delivering electrical shocks into Tillman's spinal column. Id. at 7-8, ¶¶ 37, 39, 51. Kight deployed the taser as Tillman fled, even though he knew Tillman from high school and knew where Tillman lived. Id. at 6, ¶¶ 28-29. Right also had no indication that Tillman had committed a dangerous felony, Id. 1131, had a weapon, Id. ¶¶ 30, or had made any threats to anyone. Finally, Right knew Tillman to be generally harmless and used the taser though tackling Tillman was an available option. Id. ¶¶ 35-36.

The taser shocks caused Tillman to seize, which in turn caused physical injury as he collapsed to the ground. Id. at 7 ¶¶ 41-44. He was hospitalized for three days and continues to suffer because of Right's actions. Id. ¶¶ 43-44.

Tillman primarily claims that Kight's actions constituted an unreasonable use of force in violation of the Fourth Amendment. Id. at 7-8, ¶¶ 47-52. He additionally contends that the initial shock from the taser effected his arrest, and thus the subsequent shocks constituted abuse of a pretrial detainee in violation of the Fourth Amendment. Id. Plaintiff also maintains that the use of the taser constituted punishment without due process of law in violation of the Fourteenth Amendment. Id. at 8, ¶¶ 1, 54. Finally, Tillman alleges that Kight's actions violated the Georgia Constitution's due process, (GA. CONST. art. I., sec.I., ¶ I), equal protection, (id. ¶ II), and abuse clauses (id. ¶ XVII ("nor shall any person be abused in being arrested, while under arrest, or in prison")).

III. ANALYSIS

Kight argues that Tillman's claims are barred by the applicable statute of limitations. Doc. # 11 at 7-9. This seemingly simple contention opens a Pandora's Box of procedural specters. The specters arise because this Court's jurisdiction is mixed — federal question jurisdiction under 28 U.S.C. § 1331 for Tillman's § 1983 claims, supplemental jurisdiction under 28 U.S.C. § 1367 for Tillman's Georgia constitutional claims — and because of the interaction between Georgia's service-of-process rules and its statutes of limitations.

Such complexity warrants a brief recapitulation. Federal courts generally decide claims falling into one of four categories: (1) claims arising out of federal-law (federal question claims); (2) claims arising out of state-law between parties from different states where the amount in controversy exceeds. $75,000 (diversity claims); (3) state-law claims arising out of the same nucleus of operative fact as a filed diversity claim (diversity/supplemental state-law claims); and (4) state-law claims arising out of the same nucleus of operative facts as a filed federal law claim (federal/supplemental state-law claims).

In category (1), federal question claims, federal law governs both the substance and procedure of the action and generally state law need not be referenced. In categories (2) and (3) — diversity and diversity/supplemental claims — the federal court must delve into the law as developed around the seminal case of Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), which, as an oversimplification, requires that state law govern substance and federal law govern procedure. Though never explicitly stated by the Supreme Court, the Erie doctrine must also govern the applicable law in category (4) — federal/supplemental state-law claims — as discussed infra.

Tillman filed this case within the applicable Georgia statute of limitations period, O.C.G.A. § 9-3-33, but did not serve Kight until 110 days later, after § 9-3-33's two-year period had run. To stop the statute of limitations clock in Georgia,² a plaintiff must file suit and serve the defendant (1) within five days; or (2) after five days, so long as the plaintiff is diligent in perfecting service. Childs v. Catlin, 134 Ga.App. 778, 781, 216 S.E.2d 360 (1975); see also Williams v. Bragg, 260 Ga.App. 377, 378, 579 S.E.2d 800 (2003). If the plaintiff complies with (1) or (2), the service relates back to the date the suit was filed, which then controls for statute of limitations purposes.

Kight argues that Tillman's three-plus month delay in serving him evidences a lack of diligence, so the statute of limitations bars his case. Tillman responds that because the Court's jurisdiction is based on the federal claim at issue, rather than diversity of citizenship, the Court should hold that F.R.Civ.P. 3 — "A civil action is commenced by filing a complaint with the court" — sets the applicable statute of limitations end date. Under Rule 3, then, § 9-3-33's clock stopped ticking the day Tillman filed his Complaint with this Court. Plaintiff also argues that, even if Georgia's service requirement applies, the 120-day service provision of F.R.Civ.P. 4(m) applies, not Georgia law, so his service on Kight 110 days after he filed this Complaint would relate back to the date this case was filed (thus, it would not be time-barred).

Were this a category (2) or (3) — diversity or diversity/supplemental — case, the Georgia service requirement would apply. Cambridge Mut. Fire Ins. v. City of Claxton, Ga., 720 F.2d 1230, 1232-33 (11th Cir.1983). Cambridge was based on Walker v. Armco Steel Corp., 446 U.S. 740, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980), in which the Supreme Court held that Oklahoma's similar statute of limitations/service provision applied in diversity cases. That statute, the Court concluded, was an integral part of the state statute of limitations and did not "directly collide" with Rule 3. Absent such direct collision, the federal court should apply both the state and federal law. Walker, 446 U.S. at 748-49, 100 S.Ct. 1978. The Court reasoned that "Where is no indication that [Rule 3] was intended to toll a state statute of limitations, much less that it purported to displace state tolling rules for purposes of state statutes of limitations." Id. at 750-51, 100 S.Ct. 1978. Citing Walker, the Cambridge court held that the Georgia diligent-service rule was an integral part of the Georgia statute of limitations and must apply in diversity cases (categories (2) and (3) above). 720 F.2d at 1233.

To summarize, in diversity cases states may require steps additional to Rule 3 (the "commencement" rule) to stop a statute of limitations clock, and those requirements will be applied in federal court. In, other words, the word "commencement" in Rule 3 does not set the end date for statute of limitations purposes; it is merely a necessity to which additional requirements cart be added. Georgia's service-ofprocess rule is just such an additional requirement, so it applies in diversity cases.

In contrast, the Georgia service requirement would not apply if this Court's jurisdiction were based solely on the federal nature of the claim under 28 U.S.C. § 1331 (hence, category (1) — federal question — cases). West v. Conrail 481 U.S. 35, 39 & n. 4, 107 S.Ct. 1538, 95 L.Ed.2d 32 (1987).

The West Court dealt with a federal claim where Congress had neglected to specify an accompanying limitations statute. In such cases, courts sometimes "borrow" an analogous limitations statute from federal or state law. The issue be=fore the Court was how to determine the end date for the statute of limitations, which in West was borrowed from federal law. TheWest court held "that when the underlying cause of action is based on federal law and the absence of an express federal statute of limitations makes it necessary to borrow a limitations period from another statute, the action is not barred if it has been `commenced' in compliance with Rule 3." Id. at 39, 107 S.Ct. 1538 (emphasis added).

Though the claim in West borrowed a statute of limitations from federal law, the Court used the general phrase "another statute," as opposed to "another federal statute." Therefore, the "West rule" may be read to apply, and thus set the end date for the statute of limitations at Rule 3 "commencement," irrespective of whether the statute of limitations is borrowed from federal or state law.

Some courts have held that West only applies when the statute of limitations is borrowed from federal law. E.g., Sain v. City of Bend, Or., 309 F.3d 1134, 1138 (9th Cir.2002). Such a holding would be relevant here because Tillman's § 1983 claim...