               Case: 15-14284       Date Filed: 11/17/2017       Page: 1 of 18


                                                                                 [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.
              Case: 15-14284     Date Filed: 11/17/2017    Page: 2 of 18


      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withdrawn from his inmate account in installments.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.




                                           2
                Case: 15-14284       Date Filed: 11/17/2017       Page: 3 of 18


       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
               Case: 15-14284       Date Filed: 11/17/2017      Page: 4 of 18


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)).
                                              4
              Case: 15-14284         Date Filed: 11/17/2017   Page: 5 of 18


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

                                              5
                Case: 15-14284       Date Filed: 11/17/2017       Page: 6 of 18


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.
                                                  6
              Case: 15-14284     Date Filed: 11/17/2017    Page: 7 of 18


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

                                           7
              Case: 15-14284     Date Filed: 11/17/2017    Page: 8 of 18


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




                                           8
                Case: 15-14284       Date Filed: 11/17/2017       Page: 9 of 18


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.
                                                9
              Case: 15-14284     Date Filed: 11/17/2017    Page: 10 of 18


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

                                           10
             Case: 15-14284     Date Filed: 11/17/2017    Page: 11 of 18


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

                                          11
             Case: 15-14284      Date Filed: 11/17/2017    Page: 12 of 18


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

                                           12
             Case: 15-14284     Date Filed: 11/17/2017   Page: 13 of 18


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

                                           13
             Case: 15-14284      Date Filed: 11/17/2017   Page: 14 of 18


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.




                                          14
               Case: 15-14284        Date Filed: 11/17/2017       Page: 15 of 18


                                              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,
                                                15
               Case: 15-14284        Date Filed: 11/17/2017        Page: 16 of 18


“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.”).
                                                 16
               Case: 15-14284    Date Filed: 11/17/2017    Page: 17 of 18


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.”).

                                           17
             Case: 15-14284     Date Filed: 11/17/2017   Page: 18 of 18


      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.




                                          18
