Yasund Q. Hancock v. Brent Cape , 875 F.3d 1079 ( 2017 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14284
________________________
D.C. Docket No. 2:14-cv-00202-WCO
YASUND Q. HANCOCK,
Plaintiff - Appellant,
versus
BRENT CAPE,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(November 17, 2017)
Before TJOFLAT, JULIE CARNES, and MELLOY, ∗ Circuit Judges.
TJOFLAT, Circuit Judge:
∗
Honorable Michael J. Melloy, United States Circuit Judge for the Eighth Circuit, sitting
by designation.
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This case involves questions of state-law interpretation and the interplay
between Georgia’s renewal statute, Georgia’s general in forma pauperis statute,
and the federal rules governing in forma pauperis status. We conclude that the
District Court resolved those questions correctly and affirm its decision.
I.
On March 23, 2011, Yasund Hancock, an inmate at the Hall County
Detention Center in Gainesville, Georgia, proceeding pro se, sued Brent Cape, a
Peace Officer with the Hall County Sheriff’s Department, and another corrections
official under 42 U.S.C. § 1983 in the United States District Court for the Northern
District of Georgia. Hancock’s claim alleged that in October 2010, Cape
repeatedly struck him with a metal flashlight and sprayed him with pepper spray
while yelling racial slurs at him. As an indigent inmate, Hancock applied to
proceed in forma pauperis (“IFP”) under the federal Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. § 1915. A Magistrate Judge granted his application, and,
pursuant to the PLRA, the filing fee required to initiate the suit began to be
withdrawn from his inmate account in installments. On June 3, 2011, Hancock
was released from custody. Shortly thereafter, he reapplied to proceed IFP. The
Magistrate Judge granted his application and informed Hancock that he did not
have to pay an additional filing fee after his release to proceed.
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In 2013, as the case advanced, Hancock hired an attorney. The day after
Hancock retained counsel, Cape moved to dismiss Hancock’s case on two grounds:
first, that Hancock failed to exhaust his administrative remedies; and second, that
his claim was barred by the Supreme Court’s holding in Heck v. Humphrey, 512
U.S. 477, 114 S. Ct. 2364 (1994). On March 5, 2014, the District Court granted
Cape’s motion over Hancock’s objection and dismissed the complaint without
prejudice on the ground that Hancock failed to exhaust his administrative
remedies. Hancock never paid the remainder of the filing fee he owed to the
District Court.
Thereafter, Hancock filed notice of appeal and applied to the District Court
for leave to proceed IFP. The District Court denied his application on the basis
that his appeal was not taken in good faith. Hancock then sought IFP status in this
Court, and we denied his motion, finding that his appeal was frivolous. Thereafter,
Hancock failed to pay this Court’s filing fee, so his appeal was dismissed for
failure to prosecute.
On September 5, 2014, Hancock returned to the District Court and filed his
complaint anew. By that time, Georgia’s two-year statute of limitations on
personal injury actions, which governed Hancock’s claim, had run. 1 However,
1
Claims brought under 42 U.S.C. § 1983 are tort actions “subject to the statute of
limitations governing personal injury actions in the state where the § 1983 action has been
3
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Georgia’s “renewal statute,” O.C.G.A. § 9-2-61, allows a plaintiff, under certain
circumstances, to renew an action that was previously dismissed, even if the statute
of limitations would bar an initial claim, as long as the dismissal was not on the
merits and the second suit is brought within six months of the termination of the
previous lawsuit. See infra Part II.A.
At the time he filed his renewed § 1983 suit, Hancock paid in full the $400
filing fee required to initiate that suit. He made no mention of the outstanding fees
he owed to the District Court for filing his initial suit and to this Court for filing his
appeal. After process was served, Cape moved to dismiss Hancock’s renewed
complaint, repeating his argument that Hancock’s claim was barred by Heck and
asserting that the renewal statute did not apply to Hancock’s claim. While
considering Cape’s motion, the District Court discovered on its own initiative a
potentially dispositive issue: Georgia’s renewal statute conditions a plaintiff’s
renewal of a previously dismissed suit on “payment of costs in the original action.”
O.C.G.A. § 9-2-61. Upon discovery of this issue and the observation that Hancock
still owed the costs incurred during his initial suit and appeal, the District Court
ordered the parties to show cause why Hancock’s complaint should not be
dismissed for failure to pay the costs of his original action. Three days later, and
brought.” McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008) (citing Wilson v. Garcia, 471
U.S. 261, 105 S.Ct. 1938 (1985)).
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two days before the District Court ruled on the matter, Hancock responded that the
District Court’s grant of IFP status in his initial suit, along with documents he
received from the Eleventh Circuit pertaining to the denial of his pauper’s
application, led him to believe that he did not owe any costs stemming from that
suit. That same day, Hancock applied to proceed with his renewed suit IFP.
After considering the parties’ responses to the show-cause order, the District
Court concluded that its initial intuition was correct, denied Hancock’s IFP
application, and dismissed Hancock’s complaint for failure to pay the costs of his
first suit. Hancock moved the District Court to reconsider its decision, the District
Court refused to do so, and Hancock timely appealed.
II.
Hancock recommenced his suit more than two years after the alleged
incident giving rise to his claim occurred. But he filed his renewed suit within six
months of filing his initial suit. Thus, if Georgia’s renewal statute is inapplicable
to Hancock’s renewed suit, the case is barred by the statute of limitations. If the
renewal statute applies, it isn’t.
Generally, the renewal statute does not apply unless a plaintiff first pays the
costs he incurred in his initial suit, and it is undisputed that Hancock did not pay
the costs he owed from his first suit. But Hancock argues that his failure to pay
those costs falls under an exception to the general rule, and that he should
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nevertheless be allowed to revive his claim pursuant to the renewal statute. He
advances two arguments in support of this proposition. First, he argues that the
good-faith exception to the renewal statute’s cost-payment requirement, which the
Georgia Court of Appeals has recognized, should apply to him. Second, he argues
that Georgia law’s generous treatment of paupers, as compared to federal law’s
treatment of them, counsels us to construe the cost-payment requirement to be
inapplicable to him. We consider those arguments in turn below. But first, we
must address whether the cost-payment requirement applies to Hancock at all.
A.
As a threshold matter, we must decide whether, under Georgia law, the cost-
payment requirement applies to plaintiffs like Hancock whose initial cases were
involuntarily dismissed. 2 The renewal statute, O.C.G.A. § 9-2-61, states,
When any case has been commenced in either a state or federal court
within the applicable statute of limitations and the plaintiff
discontinues or dismisses the same, it may be recommenced in a court
of this state or in a federal court either within the original applicable
period of limitations or within six months after the discontinuance or
dismissal, whichever is later, subject to the requirement of payment of
costs in the original action as required by subsection (d) of Code
Section 9-11-41; provided, however, if the dismissal or
discontinuance occurs after the expiration of the applicable period of
limitation, this privilege of renewal shall be exercised only once.
2
Hancock did not raise this issue in his brief, but Cape addresses this point and the
District Court correctly confronted the question in its analysis before proceeding to Hancock’s
arguments.
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O.C.G.A. § 9-2-61(a). The Georgia Supreme Court long ago held that, despite its
plain language (“When any case has been commenced . . . and the plaintiff
discontinues or dismisses the same”), renewal is available under § 9-2-61 to
plaintiffs whose cases were involuntarily dismissed as well, provided that the prior
involuntary dismissal did not reach the merits of the claim. Clark v. Newsome, 180
Ga. 97, 178 S.E. 386, 388 (Ga. 1935). That holding, however, does not address
whether plaintiffs whose suits were involuntarily dismissed must pay the costs
incurred from their initial suits before renewing their actions. Section 9-2-61
incorporates the cost-payment requirement from another provision: it states that
renewal is “subject to the requirement of payment of costs in the original action as
required by subsection (d) of Code Section 9-11-41.” O.C.G.A. § 9-2-61(a)
(emphasis added). Section 9-11-41(d) in turn mirrors § 9-2-61(a)’s apparent
reference to only voluntarily dismissed suits, stating that “[i]f a plaintiff who has
dismissed an action in any court commences an action based upon or including the
same claim against the same defendant, the plaintiff shall first pay the court costs
of the action previously dismissed.” O.C.G.A. § 9-11-41(d) (emphasis added).
It makes sense that if the Georgia Supreme Court interpreted § 9-2-61 to
apply to involuntarily dismissals in spite of its plain language, it would likewise
construe § 9-11-41(d)’s similar language to require plaintiffs whose cases were
involuntarily dismissed to pay the costs of their prior actions before commencing a
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second suit as well. There is no policy reason that voluntarily and involuntarily
dismissed lawsuits should be treated differently under the statute.
But alas, the Georgia Court of Appeals’ opinion in Muhammad v. Massage
Envy of Ga., Inc., 322 Ga. App. 380, 745 S.E.2d 650 (Ga. Ct. App. 2013), stated
otherwise. In Muhammad, the Court of Appeals, sitting en banc, held that § 9-11-
41(d) should be narrowly construed to require payment of costs by only those
parties who voluntarily dismissed their suits. Id. at 382, 745 S.E.2d at 652. The
Court adopted a plain-language construction of § 9-11-41(d) in reaching its
decision. See id. (observing that § 9-11-41 “[b]y its terms” makes no reference to
involuntary dismissals). Thus, the Court overruled its own prior decision in Crane
v. Cheeley, 270 Ga. App. 126, 605 S.E.2d 824 (Ga. Ct. App. 2004). In Crane, the
Court of Appeals affirmed the trial court’s ruling that it lacked jurisdiction to hear
the plaintiff’s renewed property suit, because the plaintiff failed to pay costs he
owed from identical suits he filed earlier in the same year. Id. at 126, 605 S.E.2d
at 825. The trial court had involuntarily dismissed Crane’s prior suits by granting
the defendant’s motion to dismiss in the first claim and granting summary
judgment in the second. Id.Notwithstanding the Muhammad decision, we are convinced the District
Court correctly concluded that § 9-2-61’s cost-payment requirement applies
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equally to involuntary dismissals and voluntary dismissals.3 Although we give
lower state-court opinions “proper regard” when considering a question of state-
law interpretation, “the State’s highest court is the best authority on its own law.”
C.I.R. v. Bosch’s Estate, 387 U.S. 456, 465, 87 S. Ct. 1776, 1783 (1967). Here, we
have convincing reason to believe that the Georgia Supreme Court would decline
to follow the Court of Appeals’ construction of § 9-11-41(d) in Muhammad. For
one thing, Muhammad appears to have been hastily decided. The Muhammad
court failed to acknowledge or address its prior decision in Shaw v. Lee, 187 Ga.
App. 689, 371 S.E.2d 187 (Ga. Ct. App. 1988). In Shaw, the Court of Appeals
stated that in order to benefit from the renewal statute, an involuntarily dismissed
suit “must be treated in the same way as a voluntary dismissal” with respect “to the
payment of costs.” Id. at 690, 371 S.E.2d at 189. Nor did the Muhammad court
make any effort to explain why it concluded that § 9-11-41(d) should be construed
3
Cape argues alternatively that Hancock cannot rely on the renewal statute because his
first suit was “void.” Georgia courts have long held that the renewal statute can only revive
“voidable,” not “void,” lawsuits. E.g., Hobbs v. Arthur, 264 Ga. 359, 360, 444 S.E.2d 322, 323
(Ga. 1994). Hancock responds that his first suit was “voidable” because the District Court
dismissed it without prejudice. Although Georgia courts have not enumerated a comprehensive
list of dismissed suits that constitutes each category, they have explained that suits that can be
fixed by amendment to the pleadings, like suits in which the opposing party did not attach
affidavits required by law, are “voidable,” see Rector v. O’Day, 268 Ga. App. 864, 603 S.E.2d
337 (Ga. Ct. App. 2004), while suits that cannot be corrected through amendment, like suits in
which the plaintiff lacked standing, are “void,” see Mikell v. Certain Underwriters at Lloyds,
London, 288 Ga. App. 430, 654 S.E.2d 227 (Ga. Ct. App. 2007). In this opinion, we do not
address whether a suit dismissed for failure to exhaust administrative remedies is “void” or
“voidable” for purposes of Georgia’s renewal statute, because Hancock’s appeal fails either way.
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narrowly, while § 9-2-61’s nearly identical language must be generously construed
far beyond its plain text.
More importantly, although the Georgia Supreme Court has never squarely
answered whether a plaintiff whose suit was involuntarily dismissed must pay the
costs of the dismissed suit before recommencing the action, it has held that a
plaintiff whose suit was dismissed by operation of law must do so. See Couch v.
Wallace, 249 Ga. 568, 568, 292 S.E.2d 405, 406 (Ga. 1982) (holding that a suit
dismissed by operation of law for failure to prosecute “requires the same
prepayment of costs in actions dismissed” voluntarily under Georgia’s Civil
Practice Act). Of course, a suit dismissed by operation of law is not an
involuntarily dismissed suit in the same sense that a suit dismissed by grant of an
opponent’s motion to dismiss is. But at a bare minimum, Couch shows the
Georgia Supreme Court has already discarded the plain-text approach to § 9-11-
41(d) the Court of Appeals employed in Muhammad. A suit dismissed by
operation of law is not a voluntarily dismissed suit—a plain-text reading of § 9-11-
41(d) would limit the provision’s application to the latter only. The Georgia
Supreme Court, however, disagreed with such a literal reading and applied it to
both.
In our view, this departure from the plain text is appropriate given the
Court’s similar departure from § 9-2-61’s plain text. As the District Court
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observed, “a generous interpretation of the renewal statute mandates a similarly
generous application of a condition precedent to the plaintiff’s obligation to pay
the costs of the previous suit.” Otherwise, a plaintiff who realizes he has filed a
defective suit could avoid responsibility for the unnecessary costs his error
inflicted on the court system simply by sitting tight and waiting for the court to
throw his claim out instead of dismissing it himself, even though voluntary
dismissal would avoid wasting additional time and money. This result would defy
common sense, and no reading of either statute suggests that Georgia’s statutory
scheme was designed to make such an inequitable result possible. See State v.
Mulkey, 252 Ga. 201, 204, 312 S.E.2d 601, 604 (Ga. 1984) (“It is the duty of the
court to consider the results and consequences of any proposed construction and
not so construe a statute as will result in unreasonable or absurd consequences not
contemplated by the legislature. The construction must square with common sense
and sound reasoning.” (quotations and citations omitted)).
We therefore agree with the District Court’s holding that the Supreme Court
would construe § 9-11-41(d) to require payment of costs before involuntary
dismissals may be renewed under § 9-2-61.
B.
We now turn to Hancock’s arguments as to why he should be forgiven for
his failure to pay the costs of his first suit before invoking Georgia’s renewal
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statute. First, Hancock says his failure to pay should be forgiven under the
judicially recognized good-faith exception to the renewal statute. The Georgia
Court of Appeals has held that a plaintiff who still owes costs from a previously
dismissed suit can proceed with renewal so long as he was unaware of those
unpaid costs and he made a “good faith inquiry” to ascertain them. Daugherty v.
Norville Indus., Inc., 174 Ga. App. 89, 90, 329 S.E.2d 202, 204 (Ga. Ct. App.
1985). In Daugherty, before the plaintiffs refiled their claims—which they had
voluntarily dismissed the first time around—their attorney asked the clerk of the
Georgia trial court if they owed any remaining costs from their initial suits. Id. at
89, 329 S.E.2d at 203. The clerk told him they did not. Id. Later, after the
defendant filed an answer and a motion to dismiss on the basis of unpaid costs
leftover from the first suit, the plaintiffs promptly paid the newly discovered
balance they owed. Id.Hancock’s situation is different. He admits he was aware he still owed costs
leftover from his initial suit, and that he never paid those costs at any point, but
says that he is entitled to a good-faith exception, too. He argues that the Georgia
Supreme Court would not only adopt “the thoughtful and just reasoning” the Court
of Appeals employed in Daugherty, but would also extend the good-faith
exception beyond the facts in Daugherty to reach his “novel situation” and allow
him to proceed with his claim under the renewal statute on the basis that he has
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maintained pauper status and has remained unable to pay the costs he owes
throughout the course of his litigation.
We are not persuaded that the Georgia Supreme Court would allow Hancock
to rely on an extension of the good-faith exception to save his claim. Daugherty
makes clear that the good-faith exception temporarily forgives a plaintiff who
believes he has squared up with the courts and has no reasonable way of finding
out that he still owes costs from a prior suit before he renews the suit. Consistent
with that rationale, the Court of Appeals also held in Daugherty that once
discovered, the costs of the prior action “must be paid within a reasonable time in
order to preserve jurisdiction.” Id. This scenario is both factually and
conceptually distinct from Hancock’s situation. Although Hancock insists that he
maintained pauper status throughout the series of events leading up to this appeal,
he overlooks important aspects of this case’s procedural history. First, his request
to proceed IFP before this Court was denied by both the District Court and this
Court because his appeal was frivolous and not taken in good faith. Nothing in the
record indicates that, subsequent to that denial, Hancock ever inquired into whether
he owed any costs resulting from that failed appeal. Nor is there any indication he
had reason to believe that he was off the hook for the appeal costs, given that his
pauper’s application was denied. Federal Rule of Appellate Procedure 3(e) states
that all costs are owed to the Court of Appeals upon filing a notice of appeal, not
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upon proceeding with that appeal; it stands to reason that denial of leave to proceed
IFP means that an appellant remains responsible for those costs.
Moreover, that Hancock failed to bring these outstanding costs to the
District Court’s attention when he tried to renew his suit counsels against applying
the good-faith exception to his situation. Hancock paid in full the $400 filing fee
to initiate his second suit and made no mention of his alleged pauper status. The
District Court, in considering his renewed suit, discovered on its own initiative that
he owed costs from his initial suit. Only after the District Court made this
discovery and ordered him to show cause why his case should not be dismissed for
this failure to pay did he seek pauper relief—from either the appeal costs or the
costs he owed the District Court from his first suit. And Hancock never paid any
portion of those prior costs, though he evidently had enough money to pay the
filing fee to renew his claim.
It would have been wise for Hancock to use that money to pay some of the
costs owed from his first suit and his failed appeal, inform the District Court that
he still owed other outstanding costs, and then apply to proceed with his renewed
action IFP to obtain relief from prepayment of the filing fee in the second action.
But Hancock chose to ignore the costs he owed instead. This behavior does not
warrant application of Georgia’s narrow good-faith exception.
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C.
Next, Hancock argues that we should interpret Georgia’s renewal statute in
conjunction with the State’s more generous treatment of paupers such that we
should read the cost-payment requirement out of the statute in cases where the
plaintiff still owes costs under the federal pauper provisions. Georgia’s general
pauper statute states,
When any party, plaintiff or defendant, in any action or proceeding
held in any court in this state is unable to pay any deposit, fee, or
other cost which is normally required in that court, if the party shall
subscribe an affidavit to the effect that because of his indigence he is
unable to pay the costs, the party shall be relieved from paying the
costs and his rights shall be the same as if he had paid the costs.
O.C.G.A. § 9-15-2(a)(1) (emphasis added). In contrast, the federal pauper statute
under which Hancock sought relief allows an indigent plaintiff to forego
prepayment of courts costs as a prerequisite to filing a lawsuit. See 28 U.S.C.
§ 1915(a)(1) (“[A]ny court of the United States may authorize the commencement,
prosecution or defense of any suit . . . without prepayment of fees or security
therefor, by a person who submits an affidavit that includes a statement . . . that the
person is unable to pay such fees or give security therefor.” (emphasis added)).
Hancock does not argue that Georgia’s pauper statute, rather than the federal
pauper statute, governs his claim. 4 Instead, he argues that Georgia’s pauper statute
4
We also note that O.C.G.A. § 9-15-2 would not have applied to Hancock had he brought
his initial suit in Georgia court instead of federal court. Hancock was an inmate at the time; thus,
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“provide[s] an answer to the question[ of] proper interpretation of the renewal
statute with regard to a federal case.” Hancock’s argument thus goes like this:
because Georgia’s more generous pauper law would have forgiven him completely
of the costs he owed had he raised his claim in Georgia court, the renewal statute
should be read in a manner that effectively incorporates Georgia’s more forgiving
pauper scheme to the extent that he should be deemed—in the eyes of Georgia
law—forgiven of the costs he owes for purposes of the renewal statute’s cost-
payment requirement. 5
We disagree. If the renewal statute somehow incorporates its general pauper
statute such that he would, for purposes of renewal, be deemed to have paid the
costs he owed from his initial suit, Hancock still could not avoid the cost-payment
Georgia’s Prison Litigation Reform Act would have governed his IFP application. See O.C.G.A.
§ 42-12-15. IFP status under Georgia’s PLRA would not have absolved him from paying court
costs, either. See id. § 42-12-15(b)(1) (“A judicial order authorizing a prisoner to proceed in
forma pauperis shall not prevent the freezing of a prisoner’s inmate account nor the forwarding
of any future deposits into that account to the court in accordance with the provisions of this
chapter.”). It is unclear under Georgia law how the pauper provisions in the State’s PLRA
interact with the State’s general pauper law. For instance, we do not know if Hancock could
have invoked § 9-15-2 after his release to obtain forgiveness of the prior costs he owed as an
inmate, or whether he might have been forgiven under § 9-15-2 the costs of an appeal found to
be frivolous. Any conclusions on this front would be purely speculative, and because the federal
pauper law clearly governs the case actually before us, would be of little instruction in the case at
hand.
5
Hancock did not raise this argument below; therefore, we would be justified in treating
this argument as forfeited for purposes of this appeal. Douglas Asphalt Co. v. QORE, Inc., 657
F.3d 1146, 1152 (11th Cir. 2011). Nevertheless, we may choose to address the issue on our own
initiative, as we do here. See Thomas v. Crosby, 371 F.3d 782, 793 (11th Cir. 2004) (Tjoflat, J.,
concurring) (“[I]t is beyond dispute that, in general, we have the power to consider issues that a
party fails to raise on appeal, even though the petitioner does not have the right to demand such
consideration.”).
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requirement. However the District Court’s grant of his federal IFP application
might have impacted his liability in the eyes of Georgia law for the costs of his
initial action he owed the District Court, that grant of pauper status did nothing to
alter the fact that he still owed costs from his failed appeal to this Court and that he
never obtained pauper relief with respect to those costs. His application to proceed
with his appeal in this Court IFP was denied by both the District Court and this
Court. He did not seek relief from those costs until after the District Court ordered
him to explain why his renewed action should not be dismissed for failure to pay
those costs.
Suppose a similar series of events occurred in a hypothetical case brought in
a Georgia Court under Georgia’s general pauper statute. Even under Georgia law,
an indigent plaintiff cannot renew a previous suit without paying the not-yet-
forgiven costs of the initial suit unless he notifies the court of his unpaid costs and
his pauper status at the time he attempts to renew. See S. Grocery Stores v. Kelly,
52 Ga. App. 551, 183 S.E. 924, 925 (Ga. 1936) (“When . . . the plaintiff desires to
recommence his suit, if he will make and file with his petition an affidavit in
writing that he has good cause for recommencing his suit, and that, owing to his
poverty, he is unable to pay the accrued costs in the case, he shall have the right to
recommence said suit, without paying costs. . . . It must be filed with the petition
at the time it is filed.”).
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Under the circumstances of this case, then, Hancock could not have renewed
his claim in Georgia court because he failed to invoke pauper status with respect to
the appeal costs he still owed at the time he attempted to renew. We thus find no
decision by any Georgia court that suggests that a litigant whose federal pauper
application was denied because he filed a frivolous appeal would still be deemed to
have paid his court costs in the eyes of Georgia law, even if it is assumed that a
pauper whose application was approved might be. Hence, we find no support for
the assertion that the Georgia Supreme Court would construe Georgia’s renewal
statute to deem Hancock to have met the cost-payment requirement under the
circumstances of this case.
III.
Accordingly, the District Court’s dismissal of Hancock’s claim is
AFFIRMED.
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