Lead Opinion
Hаmidullah 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 thе 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 limitation.
“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 challеnged, i.e., the [complaint], is construed in favor of the party who filed it.” Northway v. Allen,
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 suppоrt 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,
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 аny 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 аttorney 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 limitation 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
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,
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,
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,
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
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,
Judgment affirmed.
Concurrence Opinion
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 “criminаl 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. Clearly, Nasir’s nolo plea and the sentеnce imposed thereon constitute a “disposition” arising from the charges against him.
While access to criminal history information is broadly granted, the primary statute restricting access
Under the current vеrsion of OCGA § 35-3-37, individuals are afforded the right to automatic restriction of their “criminal history record information” pertaining to most arrests ultimately ending in non-conviction. OCGA § 35-3-37 (h).As compared to expungement under prior law, restriction is thus available as to a broader range of criminal dispositions, with fewer exceptions. Compare OCGA § 35-3-37 (h)-(j), with former OCGA § 35-3-37 (d) (2012). In addition, record restriction generally takes effect аutomatically as to eligible arrests, see OCGA § 35-3-37 (h) (“[a]ccess shall be restricted by the [Georgia Crime Information Center]”), whereas expungement was accomplished only by request, see former OCGA § 35-3-37 (d) (1) (2012) (in dividual“may request” expungement).
(Footnotes omitted.) Mosley,
The first and overarching principle of statutory construction is that when construing a statute, “we look at its terms, giving words their plain and ordinary meaning, and where the plain language of a statute is clear and susceptible of only one reasonable construction, we must construe the statute according to its terms.” (Citation and punctuation omitted.) Mahalo Investments III, LLC v. First Citizens Bank & Trust Co.,
The dissent finds that Nasir may petition to restrict his criminal record under OCGA § 35-3-37 (h) (2) (A)
The dissent’s error stems from going beyond the plain language of the text of the statute, which is only susceptible to one reasonable interpretation, and its analysis exemplifies why it is important to apply the rules of statutory construction in a principled way If the plain language of the text of the statute is only susceptible to one reasonable interpretation, a court need not resort to other rules of construction such as construing statutory language to avoid surplus-age. See Nguyen,
Nor do I believe that the dissent’s conclusion can be saved by some notion that restricting the record effectuates legislative intent. Although it is true that in construing statutes, we have been directed to seek to effectuate the intent of the legislature,
For these
I am authorized to state that Presiding Judge Dillard and Judge Branch join in this opinion.
Notes
Pursuant to OCGA § 35-3-37 (a) (6), records that are “restricted” are “available only to judicial officials and criminal justice agencies for law enforcement or criminal investigative purposes or to criminal justice agencies for purposes of employment” and are prohibited from being “disclosed or otherwise made available to any private persons оr businesses.”
We note that OCGA §§ 35-3-34 and 35-3-35 also provide for certain criminal history records to be shielded, including records of individuals discharged under our first offender statute and the prosecution records of cases assigned to accountability courts when it is contemplated that the charges will be dismissed or nolle prossed upon successful completion of the program, as set out in OCGA § 42-8-62.1 and OCGA § 15-1-20, respеctively. Nasir has not asserted these statutes as grounds for the relief he requests.
Subsection (h) (2) (A) provides for restricted access where “[ejxcept as provided in subsection (i) of this Code section, all charges were dismissed or nolle prossed[.]”
OCGA § 35-3-37 (i) (1) (A) in turn provides:
After the filing of an indictment or accusation, an individual’s criminal history record information shall not be restricted if: (1) The charges were nolle prossed or otherwise dismissed beсause: (A) Of a plea agreement resulting in a conviction of the individual for an offense arising out of the same underlying transaction or occurrence as the conviction [.]
(Emphasis supplied.)
See Lue v. Eady,
Thus, the dissent improperly relies on the “Final Report of the Senate Expungement Reform Study Committee (2013)” to discern the spirit and intent of the legislation. See Merritt v. State,
Dissenting Opinion
dissenting.
Countless ordinary people enter misdemeanor nolo contendere pleas every day expecting to be able to move past their mistakes and be productive members of society. I, therefore, cannot agree that Nasir is prohibited from having his criminal records restricted under OCGA § 35-3-37. Nasir is precisеly the type of person whom this statute is intended to protect, and I am deeply concerned about the message this case sends to the public. The majority’s narrow reading of the statute essentially eviscerates any benefit Nasir — or any defendant in this situation — can obtain from entering a nolo contendere plea. In enacting the recent amendments to OCGA § 35-3-37, the Georgia legislature intеnded to expand the rights of individuals to restrict access to their criminal records so they could put their mistakes behind them and be afforded a second chance. Mosley u. Lowe,
The language in OCGA § 35-3-37 (h) (2) (A) provides that access to criminal records is restricted where “all charges were dismissed or nolle prossed[.]” OCGA § 35-3-37 (h) (2) (A) (2013). This language, however, is modified by subsection (i), which provides:
After the filing of an indictment or accusation, an individual’s criminal history record information shall not be restricted if: (1) The charges were nolle prossed or otherwise dismissed because: (A) Of a plea agreement resulting in a conviction of the individual for an offense arising out of the same underlying transaction or occurrenсe as the conviction[.]
(Emphasis supplied.) OCGA § 35-3-37 (i) (1) (A) (2013). In construing this statute, we must read the different sections “in a consistent and harmonious manner, in the context of the entire scheme of the statute and in an attempt to gather the legislative intent from the statute as a whole.” Mooney v. Webster,
When the statute is read in its entirety, I would find that it does not clearly prohibit Nasir — who entered a nolo contendere plea to a single count of misdemeanor theft and had the remaining counts nolle prossed — from obtaining relief. See The Georgia Justice Project, “Collateral Consequences of Arrests and Convictions: Policy and Law in Georgia,” Dennard & DiCarlo, at 31 (2008) (“[although framed in terms of the circumstances under which an individual’s recоrd may not be expunged, the [statute] clearly denotes that absent these circumstances an individual is entitled to expungement[.]”).
I would find that Nasir is entitled to relief because his nolo contendere plea does not qualify as a conviction as contemplated under OCGA § 35-3-37 (i). Notably, under OCGA § 17-7-95 (c),
[e]xcept as otherwise provided by law, a plea of nolo conten-dere shall not be used against the defendant in any other court or proceedings as an admission of guilt or otherwise or for any purpose; and the plea shall not be deemed a plea of guilty for thepurpose of effecting any civil disqualification of the defendant^]
(Emphasis supplied.) A nolo contendere plea is designed to enable a defendant to avoid the harsh penalties associated with a guilty plea, and it cannot work any civil disqualification against the defendant. See Fortson v. Hopper,
Importantly, the plain language of OCGA § 17-7-95 prohibits the use of a nolo contendere plea against a defendant in any other proceeding unless otherwise provided by law, and OCGA § 35-3-37 does not expressly provide that a nolo cоntendere plea constitutes a conviction. Using Nasir’s plea in this manner to prevent restrictions on access to his criminal records under OCGA § 35-3-37 would effectively use the nolo contendere plea against Nasir, which OCGA § 17-7-95 (c) expressly forbids. Bolden, supra,
Moreover, the Supreme Court of Georgia explained that the amendments were enacted to expand the eligibility for relief, and therefore requests to restrict access to records that pre-date the amendments should nevertheless be “assessed against the expanded eligibility criteria of the amended law.” Mosley, supra,