Shaquita Davis appeals from the April 2, 2004 order entered by the State Court of Fulton County dismissing her amended complaint pursuant to the Georgia Tort Claims Act, OCGA § 50-21-20 et seq. (“GTCA”). We affirm the trial court’s dismissal of Davis’ state common law and constitutional claims brought against all appellees, as well as the trial court’s dismissal of her federal constitutional claims brought against appellee the Georgia State Patrol (“GSP”) and appellee the Georgia Department of Public Safety (“DPS”). However, because of the incomplete state of the existing record, we remand with direction on the issue of whether Davis can proceed with her federal constitutional claims against appellee Ronald A. Standifer, a patrol officer with the GSP.
Davis filed the present action seeking damages from GSP Officer Standifer, GSP, and DPS for the “severe physical, mental, moral, and emotional harm” that she suffered as a result of Standifer’s alleged sexual misconduct during a routine traffic stop. In her complaint, Davis alleged that on November 8, 2001, Standifer, while “acting within the scope of his official duties and employment as a state employee of the [GSP], a division of the [DPS],” stopped her vehicle for a traffic violation. She alleged that during the traffic stop, Standifer touched her “on the outside of her pants near her vaginal area,” placed his hand underneath her clothing, and “inserted at least one finger in [her] vagina.”
Based on these allegations, Davis asserted claims for (1) extreme mental and emotional anguish and harm; (2) sexual assault; (3) sexual battery; (4) assault under color of state of law; (5) false imprisonment; and (6) violation of her state and federal constitutional rights. Davis asserted an additional claim against GSP and DPS for exhibiting deliberate indifference to her rights, privileges, and immunities through inadequate hiring procedures; inadequate instruction, supervision, control, and discipline; and acquiescence in unconstitutional practices. Davis’ complaint further specified that she was bringing the action pursuant to the GTCA and 42 USC § 1983.
Standifer filed a motion to dismiss Davis’ complaint. Standifer contended that he could not be held individually liable because the alleged conduct occurred within the course and scope of his official duties and employment, entitling him to official immunity under the GTCA. See OCGA § 50-21-25 (a). Standifer further argued that Davis’ claims for extreme mental and emotional anguish, sexual assault, assault under color of state law, false imprisonment, and violation of her state constitutional rights were foreclosed by her failure to comply with the ante litem notice provision of the GTCA. See OCGA§ 50-21-26.
GSP and DPS filed a separate motion to dismiss. GSP and DPS contended that the trial court lacked subject matter jurisdiction over them, since the State of Georgia has not waived its sovereign immunity under the GTCA with respect to losses suffered by a plaintiff as a result of an alleged assault, battery, or false imprisonment. See OCGA § 50-21-24 (7). GSP and DPS likewise argued that Davis’ claims were foreclosed by her noncompliance with the GTCA ante litem notice provision. See OCGA § 50-21-26.
Davis subsequently filed an amendment to her complaint. Among other things, the amendment added a new sentence alleging, “alternatively,” that at the time of the incident, “Standifer was not acting within the scope of his official duties and employment as a state employee; rather, he was acting in his individual capacity.” The factual description of the time, place, and circumstances of
After hearing oral argument from the parties, the trial court entered an order granting the appellees’ respective motions to dismiss pursuant to the GTCA. Davis now appeals from that order, contending that the trial court improperly dismissed her state common law and constitutional claims, as well as her federal constitutional claims.
1.
State Law Claims.
Davis argues that the trial court erred in dismissing her state law claims pursuant to the GTCA because the allegations of her amended complaint show that Standifer is not entitled to official immunity and that GSP and DPS are not entitled to sovereign immunity. “We review the trial court’s ruling on a motion to dismiss under the de novo standard of review.”
BankWest, Inc. v. Oxendine,
(a)
State Law Claims Alleged Against Standifer.
The GTCA “exempts state officers and employees from liability for any torts committed while acting within the scope of their official duties or employment.”
Ridley v. Johns,
Guided by these principles, we turn to the allegations in Davis’ complaint as amended. Davis’ amended complaint alleges that Standifer, a GSP officer, was an employee of the State of Georgia. Furthermore, Davis’ complaint, even as amended, explicitly states that the alleged sexual assault occurred during the course of a traffic stop of Davis’ vehicle carried out by Standifer. Since the only alleged contact and interaction between Davis and Standifer occurred during the traffic stop, Davis’ amended complaint clearly alleges facts showing that the sexual assault “arose from the performance of [Standifer’s] official duties as a [patrol] officer.”
Mattox v. Bailey,
It is true that Davis’ amended complaint added a new alternative allegation stating simply that the misconduct occurred
Davis’ amended complaint contains the same factual disclosures as her original complaint, and, as explained above, those facts defeat her state law claims against Standifer by showing that his alleged misconduct occurred within the scope of his official duties. That is, the amendment to Davis’ complaint alleged no new or different facts, and it did not alter or delete the factual description of the time, place, and circumstances of the sexual assault disclosed in the original complaint. Rather, Davis did no more than amend her complaint to include an alternative, naked allegation that the same facts disclosed in the original complaint occurred outside the scope of Standifer’s official duties as a patrol officer. Thus, the unchanged facts disclosed in the amended complaint clearly demonstrate that Standifer is entitled to official immunity under OCGA § 50-21-25 (a).
For these reasons, all of Davis’ state law claims brought against Standifer were barred by the GTCA. This includes Davis’ state constitutional claims, which arose out of the same allegations of underlying tortious conduct. See
Premo,
(b) State Law Claims Alleged Against GSP and DPS. Because the trial court properly held that Standifer was immune from suit, Davis’ only potential avenue of recourse under state law was against the state governmental entity that employed Standifer. OCGA § 50-21-25 (b). 3 Pursuant to the GTCA,
[t]he state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances; provided, however, that the state’s sovereign immunity is waived subject to all exceptions and limitations set forth in this article.
(Emphasis supplied.) OCGA § 50-21-23 (a). Since Davis’ amended complaint shows that Standifer was acting within the scope of his official duties as a state employee at the time of the alleged sexual
assault, GSP and DPS have waived their sovereign immunity and are liable for the harm suffered by Davis during the traffic stop to the same extent as a private entity under like circumstances, “unless the alleged tortious act falls within one of the exceptions [to the state’s waiver of sovereign immunity] set forth in OCGA § 50-21-24.” (Citation, punctuation and emphasis omitted.)
Mattox,
We conclude that one of the exceptions to the state’s waiver of sovereign immunity does apply in this case, namely, the exception
Davis’ claims for extreme mental and emotional anguish and harm, assault under color of state law, and violation of her state constitutional rights likewise fall within the exception found in OCGA§ 50-21-24 (7) for assault and battery. In determining whether the exception applies, our focus is not on which particular state law causes of action a plaintiff has set forth in her complaint, but rather on the underlying conduct that allegedly caused the plaintiffs loss.
4
See Dept. of Human Resources v. Coley,
Here, Davis’ amended complaint shows that the losses she suffered arose out of Standifer’s sexual assault upon her, which, if true, plainly constituted an assault and battery upon her person.
5
Thus, Davis’ claims for extreme mental and emotional anguish and harm, assault under color of state law, and violation of her state constitutional rights are barred by the GTCA’s exception for assault and battery. See
Bd. of Public Safety v. Jordan,
Nor can Davis circumvent the assault and battery exception by alleging that GSP and DPS were negligent or deliberately indifferent in their hiring, instruction, supervision, control, and discipline of Standifer, or by alleging that they acquiesced to his unconstitutional conduct. When analyzing whether the exceptions to liability found in OCGA § 50-21-24 (7) apply in a given case, “we do not look at the duty allegedly breached by the government.”
Santamorena,
In sum, we conclude the trial court did not err in dismissing under the GTCA all of Davis’ state law claims brought against GSP and DPS. The exception to the state’s waiver of sovereign immunity contained in OCGA § 50-21-24 (7) applies in this case based on the allegations of Davis’ amended complaint. 6
2.
Federal Claims.
In her amended complaint, Davis also asserts federal constitutional claims against Standifer, GPS, and DPS pursuant to 42 USC § 1983. Davis argues that the trial court erred in dismissing her federal constitutional claims. Davis’ contention is
clearly without merit with respect to GSP and DPS, since the state and its agencies are not “persons” subject to suit for damages under 42 USC § 1983.
Mattox,
However, appellees contend that Davis voluntarily dismissed her federal constitutional claims with prejudice after appellees removed the case to federal court, leading the federal district court to remand the case back to state court. Appellees assert that no federal constitutional claims remain pending in this case as a result of the voluntary dismissal.
In light of Davis’ argument on appeal that Standifer’s motion to dismiss should not have been granted on her federal constitutional claims, there is an apparent factual dispute between the parties over whether Davis’ federal constitutional claims remain pending in this case or were voluntarily dismissed with prejudice. Although resolution of this issue should be a straightforward exercise, we cannot resolve the issue given the incomplete state of the existing record. The record contains none of the pleadings filed with respect to the removal and remand that appellees allege took place or with respect to the alleged voluntary dismissal of the federal constitutional claims. Nor are there any stipulations between the parties in the record that shed light on this question. And, although the trial court heard oral argument on the motions to dismiss, no transcript of that argument was included in the record on appeal. Finally, it is unclear from the trial court’s April 2, 2004 order granting the motions to dismiss whether the trial court considered or ruled upon the status of Davis’ federal constitutional claims.
Under these circumstances, we remand the case to the trial court to address the dispute over Davis’ federal constitutional claims. On remand, the trial court should hear from the parties and rule on whether Davis’ federal constitutional claims brought against Standifer pursuant to 42 USC § 1983 remain pending in this case. If those claims have not been voluntarily dismissed with prejudice and in fact remain pending, then Davis is entitled to proceed with those claims against Standifer in his individual capacity based on the allegations found in her amended complaint.
Judgment affirmed and case remanded with direction.
Notes
OCGA § 50-21-25 (a) provides:
(a) This article constitutes the exclusive remedy for any tort committed by a state officer or employee. A state officer or employee who commits a tort while acting within the scope of his or her official duties or employment is not subject to lawsuit or liability therefor. However, nothing in this article shall be construed to give a state officer or employee immunity from suit and liability if it is proved that the officer’s or employee’s conduct was not within the scope of his or her official duties or employment.
Notably, the GTCA does not apply to
county
employees. See OCGA § 50-21-22 (5); Ridley,
Georgia has “no equivalent to 42 USC § 1983, which gives a claim against a state officer individually for certain unconstitutional acts.”
Howard v. Miller,
OCGA § 50-21-25 (b) provides:
(b) A person bringing an action against the state under the provisions of this article must name as a party defendant only the state government entity for which the state officer or employee was acting and shall not name the state officer or employee individually. In the event that the state officer or employee is individually named for an act or omission for which the state is liable under this article, the state government entity for which the state officer or employee was acting must be substituted as the party defendant.
GSP argues that it is a mere division of DPS and is not itself a governmental entity, and, as such, lacks the capacity to be sued in this case. However, we need not reach this question on appeal, given our conclusion, explained below, that OCGA § 50-21-24 (7) bars all of Davis’ state law claims brought against either GSP or DPS.
OCGA § 50-21-22 (3) defines “loss” to mean “personal injury; disease; death; damage to tangible property, including lost wages and economic loss to the person who suffered the injury, disease, or death; pain and suffering; mental anguish; and any other element of actual damages recoverable in actions for negligence.”
Although unclear, Davis appears to suggest that the assault and battery exception should only apply in cases where the perpetrator acted with the intent to cause harm to the victim. Her suggestion is without merit. In the context of OCGA § 50-21-24 (7), “the legislature clearly used
the terms ‘assault’ and ‘battery’in their tort sense.”
Coley,
Because we conclude that all of Davis’ state law claims alleged against the appellees are barred on grounds of either official immunity or sovereign immunity, we do not reach Davis’ contention that the trial court erred in dismissing her state law claims for failing to comply with the ante litem notice provision of the GTCA. See OCGA § 50-21-26.