Appellant seeks reversal of summary judgment granted on the basis of sovereign immunity.
In August 1981, James Daniel Holloway, then fifteen, was enrolled by his parents аs a boarding student at the Georgia Academy for the Blind (GAB). See OCGA § 20-2-152 (c) (1) (E). Daniel was born with serious physical and mental disabilities resulting from a diagnosed genetic condition. The facilities at the institution required that Holloway share a room with other students, including one Henderson.
According to the dеposition of Daniel’s mother, Daniel was beaten by Henderson three days after his enrollment and suffered significant bruises from the incident, so she withdrеw him. Daniel was re-enrolled in December. When Mrs. Holloway went to her son’s cottage at GAB in April 1982 to pick him up to take him home for the weekend, she witnessed her son being pinned down on a bed by Henderson, who was “jabbing him with a pencil.” Mrs. Holloway stated that during this episode, the housemother was next door watching television and that despite the assurances that Daniel and the Henderson boy would not be kept together, the twо boys had remained in the same cottage. Following this second alleged incident, Daniel was permanently removed from GAB. Thereafter Mrs. Holloway as next friend for Daniel filed suit against Charles McDaniel in his capacity as State Superintendent of Schools, and others. 1 The othеr defendants were dismissed by plaintiff prior to consideration of the summary judgment motion.
The allegations against the superintendent were that GAB had a *12 duty to care for Daniel while in its custody, that the actions or inactions of GAB personnel in “permitting these assaults to continue” constitutеd reckless and intentional conduct amounting to indifference to consequences equivalent to actual intent; that the authorities аt GAB knew of the assaults by Henderson, knew of the Holloways’ concern, and assured Mrs. Holloway Daniel would be protected from Henderson if Dаniel were re-enrolled; and that as a result of GAB’s “wanton lack of care” Daniel suffered extensively and is now undergoing treatment for personality changes and continuing fears.
In the third amendment to the complaint, plaintiff also alleged that, “[w]hen the officials at the Academy permitted the beatings to continue, this showed a deliberate indifference to Daniel Holloway’s Constitutional rights under 42 U.S.C.A. § 1983, and under the United States Constitution and the Constitution of the State of Georgia,” and that “[t]his was a violation of his right to ‘minimally adequate habilitation’ under the Due Process Clausе; a violation of his right to ‘freedom from harm’ under the Eighth and Fourteenth Amendments of the United States Constitution, and a violation of his right to nondiscriminatory habilitation under the Equal Protection Clause of the United States Constitution.”
1. Appellant argues that the legislature has provided liability insurance by OCGA §§ 20-2-993 and 20-2-992, when read together, and to this extent has waived sovereign immunity in a suit of this nature. However, section 993 merely allows for government-provided defense, which was given in this case, and not for payment of any liability damages.
Both incidents complained of in this case occurred prior to January 1, 1983, the effective date of Art. I, Sec. II, Par. IX of the Constitution of Georgia of 1983. The constitutional “waiver provisions are prosрective from the effective date of the amendment.”
Wilmoth v. Henry County,
There is no dispute that appellant has sued the state school superintendent in his official capacity. See
Mapp v. Drake,
Plaintiff’s complaint is that defendant, in his capacity and within the scope of his authority, failed to take action to protect Daniel from physical assaults by other children, in that he failed to establish proper policy or procedure. This is clearly a discretionary act, and she has presented no evidence whatsoever to justify a determination that there is a factual dispute as to whether or not there was wilful or malicious conduct on the part of the superintendent. Mere negligence оn his part, even if proved, is insufficient to avoid the immunity. Truelove v. Wilson, supra, and cases cited therein.
We turn to the federal and constitutional claims detailed above.
2. To begin with, we reject the argument that a claim under 42 USCA § 1983, is irreconcilable with a state sovereign immunity defense.
City of Cave Spring v. Mason,
The record is barren of any evidence of “implementation of an intentional policy or a constitutional deprivation resulting from аn intentionally corrupt or impermissible policy” so as to find a cause of action under 42 USC § 1983. Id.
Though appellant intones the state and fеderal constitutions and violations of various provisions thereof, she makes no supporting ar
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gument and therefore has abandoned suсh assertions for purposes of our review. Court of Appeals Rule 15 (c) (2). See
Mitchell v. State,
Judgment affirmed.
Notes
Subsequent to the filing of this suit, Charles McDaniel died and Werner Rogers was appointed State School Superintendent. A suggestion of death of appellee was filed in the case.