WRIGHT v. BROWN Et Al.

A15A1788. et al. WRIGHT BROWN Dillard, Judge. Wright, acting Jr., an

Willie inmate in the Macon State Prison pro prison Superior County against se, filed suit in the Court Wilcox State alleging

officials, claims under State tort law and 42 USC requesting proceed pauperis (“IFP”) 1983, and in forma so as to filing Wright’s filed waive request, arguing fees. The defendants a traverse IFP previously

that his numerous dismissed federal Georgia Litigation lawsuits counted as strikes Prison (“PLRA”)1 proceeding and, thus, Reform Act him barred from IFP in agreed this matter. The trial dismissed the case without prejudice. appeal, Wright contends, alia, On inter that the court erred ruling previously that his dismissed federal lawsuits count agree and, therefore, strikes under the PLRA. We reverse ruling proceedings court’s and remand the further case for consistent opinion. with this undisputed Wright record shows that since has been serving

an inmate incarcerated the Macon State Prison 20-year years, Wright sentence. Over the the last course of five filed seven lawsuits in the United States District for the Middle Court Georgia against prison officials, District of various all of which were Wright lawsuit,2 officials, dismissed. In such the sixth sued State injuries alleging, alia, Brown, inter that he suffered when Antonio OCGA 42-12-1 See et Wright Brown, No. Case seq. 5:13-CV-386 (M.D. 2014). stomped prison prison guard, hand, staff failed to on his and that injury. adequate Nevertheless, provide on medical treatment for Wright’s January suit without 27, 2014, the district court dismissed ground prejudice rule” the “three strikes that it was barred on the Litigation Reform Act.3 the federal Prison subject Consequently, 31, 2014, filed the on December County against Superior Brown and in the Court of Wilcox lawsuit alleging prison (“defendants”), under claims least one other official pay filing fee, § And rather than State tort law and USC 1983. request proceed Shortly Wright thereafter, the defen- filed a IFP. Wright’s request. special appearance IFP and traverse to dants filed a Specifically, Wright’s previously argued that seven the defendants qualified federal lawsuits strikes OCGA dismissed proceed- Georgia and, thus, from the statute barred him PLRA agreed Wright’s ing and, therefore, court dismissed IFP. trial appeal prejudice. follows. lawsuit without This appellate brief, in chal in addition to We first note that his provision lenging in construction of the three-strikes the trial court’s (1)failing Georgia PLRA,4 erred in contends that court vague, unconstitutional, overbroad; to find that the statute was finding (2) district court are the that the trial court and the federal sovereign; filing (3)finding in court the federal district same imposes alleged errors, however, been a cost on the State. These have appeal. Wright, rules, in of this Court’s has waived on contravention preserved for [these enumerations] [were] “not shown of error how any provided review, has relevant citation to the record [he] our nor showing fact, In claims] [were] of error raised below.”5 [these argu appellate particular nothing that these in record indicates an issue ments were raised below. we will not consider raised appeal, trial has not had the the first time on “because the opportunity to consider it.”6 Wright essentially error, contends

2. In three enumerations of ruling trial that his federal lawsuits that the court erred judgment Print of serious to state occasions, (2012); Direction, et OCGA 42-12-1 See 28 USC 1915 United States that White Oak White Oak Court of see also claim in a civil physical while incarcerated or upon Inc., Homes, Inc., Homes, action injury.”). which relief Appeals Inc. v. seq. (g) (“In proceeding dismissed on Cmty. detained in Rule no Bank event shall a under this section if the granted, (a) (1). at 504 & any facility, brought Trust, grounds unless the (2) prisoner (punctuation omitted); that it is prisoner App. bring prisoner an action or frivolous, malicious, a civil action or is under imminent has, on 3 more appeal see also Sitton v. or appeal danger a court prior fails Georgia qualify United States District Court for the Middle District of agree as strikes under OCGA 42-12-7.2 PLRA. We ruling. and, therefore, reverse the court’s outset, statute, At the we note that we necessarily begin analysis binding our familiar canons of statutory considering meaning construction. And in statute, of a charge appellate “presume as an that the General Assembly meant said Thus, what it and said what meant.”7 we statutory plain ordinary meaning,8 must afford the text its contextually,9 consider the text “in read text its most natural and way, ordinary speaker English language reasonable as an language would,”10and seek to “avoid a construction that makes some surplusage.”11 Importantly, language rhere when the of a statute is plain susceptible only one natural and reasonable construc accordingly.”12 tion, “courts must construe the statute Bearing guiding principles mind, these we will now consider provision 42-12-7.2, relevant text OCGA the “three strikes” Georgia’s provides: PLRA, which prisoner

In no event shall a file action forma pauperis any prisoner in has, court of this state if on the prior three or more occasions while he or she was incarcer- any facility, any any ated or detained filed action in court subsequently grounds ofthis state that was dismissed on the malicious, that such action was frivolous unless the prisoner danger physical injury. is under imminent ofserious 7 Coleman, 170, 172 (1) (a) (751 SE2d 337) (2013) (punetuationomitted);see Deal v. 294 Ga. 267, State, App. (2) 504) (2013) (same). also Martinez v. 325 Ga. 273 SE2d 8 Deal, end, (1) (a) (“To statutory plain at See 294 Ga. 172 that we afford must the text its ordinary (punctuation Able, meaning.” omitted)); 632, 636 App. State v. 321 Ga. SE2d charged (“Ajudge original is the law in the and/or accordance with plain meaning fairly .”). (and implies). of the text at issue all the text .. 9 Az., Inc.,_U. (B) (133 2247, S._,_(II) Arizona v. Inter Tribal Council SCt of 239) (2013) (“Words content, however, meaning given 186 LE2d that can have than more one are by Deal, surroundings.” (punctuation omitted)); (1) (a) (“[W]e their 294 at 172 Ga. must view the statutory (“In appears[.]”); (b) text the context in which see also OCGA 1-3-1 all statutes, interpretations ordinary signification applied Hendry words____”); of the shall he to all Hendry, (1) (734 46) (2012) (same). v. 292 Ga. 3 SE2d 10Deal, Martinez, (1) (a); App. (2). 294 Ga. at 172-73 accord 325 Ga. 273 at 11 T., App. 380) (2014) (punctuation In the Interest L. Ga. 592 SE2d of omitted); Long, (1) (765 687) (2014). v. accord Holcomb 329 Ga. State, Luangkhot (2013) (punctuation omitted); State, 693, 695-96 Martinez, (2009); accord Chase construing argues appeal, Wright the erred in that the trial court On “any any phrase the of this state” to include lawsuits action in court agree. filed in federal district'court. We he Turning plain statute, that, text we note while of first previous filed his lawsuits district court where the federal certainly State, the word term in or within this of—the any thing, place, actually “the or direction whence ,”13 uses—indicates although thing goes, indeed, ... And comes, is driven or moved yet specific appellate have to address courts of this State construing early language 42-12-7.2, an ver at issue OCGA Georgia Supreme statute,14 held Court sion ofthe renewal phrase, apply nearly state,” did not identical “courts of this by the but, rather, it to “courts created limited mean federal courts Approximately years later, and laws this State.”15 constitution this similarly garnishment statute,16 Court, within context only interpreted phrase to include courts “a court of this State” Georgia.”17 by then on and laws of We went “created constitution by obviously, courts, are created consti that federal not to note of this tution or laws State.18 overarching purpose

Arguing PLRA, as rising expressly 42-12-2, is to costs stated in OCGA “address litigation filing and frivolous lawsuits caused meritless “any phrase prisoners,”19 construing contend that the defendants filed in federal of this state” to include lawsuits action in enacting fully Assembly’s effectuates the General intent unavailing. argument 42-12-7.2. We find this OCGA plain meaning previously noted, OCGA As “any court of this state” cannot makes clear that action reasonably interpreted including filed court. an action in a federal backdrop statutory provision Furthermore, of this the contextual only primary course, is, “a conclusion. Context serves bolster this meaning.”20 context, look “other determinant of we (emphasis Compact English Dictionary (2ded. 1991) supplied); see also Oxford Dictionary English (2d 1957) (defining Language of 1689 ed. Webster’s New International from, to; ..”). “proceeding belonging relating as to .. “of” 14 1873, See Code § 15 17, (1894). Publ’g DeLaughter, SE Co. 95 Ga. 18 Constitution 16 Ann. 46-101. See former Code § 17 Acworth, (punctuation City 101, (1980) 102 SE2d Hubert v. 154 Ga. of omitted). 18 id. See K. W., 140, (punctuation 394) (1998) In the Interest 233 Ga. of omitted) precedent (physical only); OCGA 42-12-2. see State, omitted). May 38) (2014) (punctuation statute, history of the same the structure and of the provisions whole statute, constitutional, statutory, and the other and common law — background alike —that the legal statutory provision law forms of the question.”21 in presume We must also that the had Assembly General knowledge “full of the state of the existing law enacted statute reference it.”22 with

Here, of light Assembly in the fact that well before General have, enacted of appellate OCGA courts this State contexts, least separate two construed the of this phrase “courts courts, including persuaded state” as not federal we are not legislature, argument employing nearly identical phrase, nonetheless intended for federal to be courts included this context and actions filed in such to count courts as strikes under OCGA § 42-12-7.2.24 Assembly Had the General intended to attribute a broader meaning state,” to the this phrase “courts of so as include federal courts, it Indeed, could done cursory have so.25 even a review of Georgia Code yields examples Assembly several of the General expressly distinguishing between courts explic state federal itly stating legislation implicate when or implicated by will actions latter.26 And while the perfectly defendants have sound arguments in favor policy why of frivolous federal filings courts should as Wright’s PLRA, such strikes “it Georgia’s constitute Chase, 391-92; (2) (punctuation omitted). Id. at see also 695-96 285 Ga. at 22 Chase, (2); Luangkhot, 285 Ga. at 695 accord 292 Ga. at 424 p. See Ga. L. 1.§ Bd., Cmty. Pines Summerlin v. Ga. Serv. (concluding Assembly presumed the General enact because statutes with full law, knowledge existing expected apply legal of it of a courts to definition certain term developed existing jurisprudence). under the law and common 25 See id. (a) (“When any See OCGA 9-2-61 case has been commenced in either a state or federal applicable plaintiff within court oflimitations discontinues or dismisses same, may be recommenced in a court state or in court either this a within federal applicable period original six or limitations or within months after discontinuance dismissal____”); (b) (“Asagainst parties acting good 9-12-81 the interest of OCGA third faith acquired binding property without notice who have or lien of the transfer defendant judgment, money judgment county any no obtained within the residence in the defendant’s upon property this court shall state or in this state create a lien of the federal .”); issuing upon defendant unless the execution is entered execution thereon docket. . . law, (b) finding determination, conclusion, (“Any judgment, 34-8-122 OCGA fact or or final review, adjudicator, examiner, hearing officer, any person made order an board or other acting authority respect chapter under the he Commissioner to this shall not admissible, binding, subsequent separate proceeding or conclusive in or action between present person person’s previous employer brought such before this state ....”). United or the States judiciary say province duty emphatically to the and ofthe what the is parties judges it should be.”27 is, or believe not what law ruling Wright’s foregoing, trial erred in that the the Given qualify under OCGA strikes in federal district lawsuits proceed request thereby dismissing to IFP and his and in ground. Accordingly, the trial court’s we reverse on this his lawsuit ruling proceedings for further consistent and this case remand opinion. this granting argues erred that the trial court also

3. despite defendants never contested the fact that defendants’ traverse supra, indigence.28 the court’s But as discussed affidavit of his exclusively Wright’s grounded was erro of lawsuit dismissal Wright’s premise lawsuits counted as strikes that federal neous under nothing Georgia’s that the PLRA, in the record indicates and Wright’s pauper’s veracity affidavit. court even considered Thus, this contention lacks merit. Wright’s remaining light holding supra, In our in Division error moot. is

enumeration Ellington, Judgment case with direction. reversed and remanded fully specially. J., J., McFadden, concurs P. concurs. Judge, concurring fully specially.

McFadden, thoughtfully fully. agree that, I concur I for the reasons well adopt majority, Attorney explained by the we cannot General’s Assembly regarding arguments the intention of the General about emphasize, today. separately however, us I write to the statute before by precedent give due bound statute and courts are Assembly. of the consideration to intention General (a) OCGA 1-3-1 directs: interpretations statutes, courts shall look

In all Assembly, keeping diligently ofthe intention General remedy. law, evil, in view all the old at times transposition A errors shall not vitiate law. Grammatical of words and clauses be a sentence resorted when meaning as it stands. clause is without contest (1993) (noting (physical untrue. The issue its court. AA-Professional OCGA 9-15-2 See the truth of an affidavit of authority precedent only); . . .”). extends thereby purpose Bail see only (a) formed shall Bonding also indigence Finney Dep’t (“Any judiciary other Deal, by verifying affirmatively heard and party is not to law as it Corr., at interest or his determined say App. 857, what the enacted 301, 302-03 law under agent court, ought oath that legislature). attorney may provide, same rules Similarly 13-2-3 directs that in the of con- interpretation OCGA § tracts, cardinal rule of construction is to ascertain the intention “[t]he parties. If that it intention is clear and contravenes no rule of intention, used law sufficient words are to arrive shall be irrespective arbitrary enforced of all technical or rules of construc- tion.” Those provisions deeply are imbedded A law. Westlaw — —

search indicates that each statute or the out in it principle set been has cited hundreds of times court and our Supreme this Very authority Court. often the cited for the out in principles set those Fowler, Cox v. See, statutes is case law rather than the statutes. e.g., 501, v. (614 59) 279 Ga. 502 SE2d Carringer Rodgers, (2005) (citing 359, (578 841) 276 Ga. 363 SE2d proposition for that “the act, cardinal rule in construing legislative is ‘to ascertain the law, and legislative purpose intent then enacting give and that construction which will effectuate the intent legislative and TermNet Phillips, Merck. Svcs. v. purpose’ ”); 342, 277 344 (588 Ga. Brooks, Corp. Gen. Elec. Credit v. SE2d (citing 242 Ga. 109, 112 (249 SE2d 596) (1978) proposition for the that “[w]hen statutory construing phrases, course, we look diligently for the intention, Assembly’s laws, General in mind old bearing relevant Holcim evils and sought to be addressed remedies (US) interposed”); AMDG, v. App. 818, 820 (2004) (citing Nguyen 197) 265 Ga. SE2d Roswell, L.L.C., v. Talisman 480, 262 Ga. 482 App.

(2003) for the “the proposition that cardinal rule of contract construc Seaboard C.L.R. Co. tion is to ascertain the intention of parties”); Blackmon, v. 342, 581) (1973) (citing Pulliam, Barrett & Carswell v. and Jenkins v. (1866), 77 Ga. 552 State, Ga. for the (1956), proposition that in acts, “the legislative diligently courts shall look for the intention of Assembly the General view at all times keeping the old law, the evil and the remedy”).

Both of those statutes were the first Current Georgia Code. (a) OCGA 1-3-1 was 5 of the Code of Current OCGA 13-2-3 § that was 2719 of Code. principle

And the set 1-3-1 (a) predates out OCGA the Code of 1863. A years adopted Supreme few after that Code was our Court wrote:

The Code directs that statutes be construed refer- law, ence to and legislature, the intention of the that the old remedy, the mischief and the at considered to arrive (Code, par. 9); long intention and such was the rule compiled before there was code of laws for this state. Bank, See Forman v. Ga. also Everett v. Planters’ (1860) (“[0]ur Troup, Act of 1854 seems to me 496, 498-499 question] by rule the old [the conclusive. Look — — remedy.”). mischief, and the old Law construction authority principle reaches line of Indeed the England. Commentaries on the Laws back to Blackstone’s (1847) (“One of Williams, the fundamental Booth is, remedial statutes law rules for the construction of common remedy; law, mischief, it is the and the consider old suppress Judges statute, as so construe the business remedy. 87.”). See also Black. Com. mischief and advance the (1848) (Warner, dissenting) Hight, J., 4 Ga. points,’ says Persons (“ Blackstone, ‘to be ‘There are three considered mischief, statutes; law, the the old of all remedial construction remedy; making Act; is, what how the old law stood at the provide; the Common Law did not the mischief for which remedy provided Legislature hath to cure this mischief. what suppress Judge to construe the Act as to it is the business of so 87.”). remedy.’ 1 Bl. Com. mischief advance Supreme adopted Accordingly Court has Justice Oliver crystal, poetic that, “Aword is not a Holmes’s observation Wendell transparent living unchanged, thought the skin a it is vary greatly according and and to the circumstances in color content Eisner, v. 245 U. the time it is used.” Towne S. which 372) (1918), quoted LaSpeyre, 62 LE Everitt SCt 377, Vanbrackle, and Robbins 468) (1997) (Carley, dissenting). J., 871, 872 Implicit recognition that an idea and the in that observation is express used it are intertwined but distinct. It follows words to perhaps always, express sometimes, idea and do the words used to an imperfectly. so imperfections expression, judges recognizing

But in such must policy policy preferences the care not to confuse their own take policy judge’s recognition legislature. a the a choices of the judge does to was intended to advance not authorize — legislature particularly policy did further than advance expense policy others. where, here, as the advance of one is at Decided March pro Wright, Jr., E se. Willie Attorney Olens, General, Cusimano, S.

Samuel A. Ellen Assistant Attorney appellees. General, for

A15A1856. THE STATE v. HARLACHER. Dillard, Judge. Following physical sports bar, a altercation at State a local charged Harlacher, Shawn indictment, via one count with of criminal attempt aggravated deadly weapon. to commit assault a Har- with general arguing demurrer, filed a a lacher impossible motion for it is attempt aggravated thus, assault, to commit an allege indictment failed to criminal under the offense laws Georgia. granted demurrer, State of The trial court Harlacher’s appeals. infra, State now For the reasons set forth we affirm. alleged August record, State, The shows that on patronizing pub sports 2014, Harlacher and victim were a local they altercation, when became in a involved verbal which then physical fight. By during fight, accounts, escalated into a all fight nose, over, victim broke Harlacher’s when go pub. away, turned victim back into the victim As the walked pointed handgun Harlacher drew a did victim’s head but gun, walking not fire. victim never saw continued Harlacher’s away, incident ended without further violence.

Subsequently, charged Harlacher, indictment, via with State attempt aggravated one of criminal count commit assault a deadly weapon. Specifically, alleged that Harlacher indictment attempt knowingly intentionally

did to commit the Aggravated Deadly Weapon, crime Assault with a violation Code Section 16-5-21... in that said accused attempt place apprehension did [the victim] reasonable receiving immediately injury pistol, a violent with a deadly weapon object offensively and an which used when person likely bodily injury, by against to result in serious pointing pistol [victim], said at said an act which constitutes step a substantial of said crime .... toward commission 11, 2015, demurrer, On March Harlacher filed a motion for a attempt battery arguing commit that assault is an and because “a person attempting commit cannot be convicted of a crime that charge attempt crime,” itself an to commit the indictment failed to

Case Details

Case Name: WRIGHT v. BROWN Et Al.

Court Name: Court of Appeals of Georgia

Date Published: Mar 2, 2016

Citation: 336 Ga. App. 1

Docket Number: A15A1788

Court Abbreviation: Ga. Ct. App.