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                               http://www.gaappeals.us/rules/


                                                                       July 13, 2015




In the Court of Appeals of Georgia
 A15A0163. TATTNALL COUNTY, GEORGIA et al. v.
     ARMSTRONG.

      MCMILLIAN, Judge.

      This appeal arises from an inmate’s allegations that he was not provided access

to proper medical care while he was incarcerated at the county jail. Appellee Jacob

Armstrong initially filed a complaint asserting state and federal law claims against

Quinton Rush, individually and in his official capacity as Tattnall County Sheriff;

Jason Howell, individually and in his official capacity as Tattnall County Chief Jailer;

John Williams, individually and in his official capacity as a Tattnall County Sheriff’s

Deputy; and the Tattnall County Sheriff’s Office (“Sheriff’s Office”). Armstrong’s

claims were removed to federal court, but after he dismissed the federal claims, the

district court remanded the case back to the Superior Court of Tattnall County.
Armstrong then filed an amended complaint, which the Sheriff’s Office and

individual defendants answered, and shortly thereafter filed a motion to add Tattnall

County (the “County”) as a party to the proceedings. The trial court granted

Armstrong’s motion over Tattnall County’s objection, and he amended his complaint

for a second and third time, asserting violations of two Georgia statutes (OCGA § 42-

4-4 and 42-5-2), and the Georgia Constitution. Tattnall County and the remaining

defendants filed motions to dismiss, arguing that Armstrong’s claims against the

County and the individual defendants in their official capacities were barred by

sovereign immunity and, additionally, that the Sheriff’s Office was not a legal entity

capable of being sued.1 Armstrong conceded that the Sheriff’s Office should be

dismissed as a party, but otherwise opposed the motions to dismiss. The trial court

dismissed the Sheriff’s Office but, citing Cantrell v.Thurman, 231 Ga. App. 510 (499

SE2d 416) (1998), refused to dismiss the remaining defendants on sovereign

immunity grounds. Pursuant to the collateral order doctrine, see, e.g., Effingham

County v. Roach, 329 Ga. App. 805, 805, n.1 (764 SE2d 600) (2014); Bd. of Regents

      1
         Tattnall County also asserted two other reasons for dismissal: (1) that
Armstrong was in fact provided proper access to medical care as required by Georgia
law, and (2) that his claims against the County were barred by the applicable statute
of limitations. However, as more fully set out below, we find it unnecessary to reach
these issues.

                                          2
v. Canas, 295 Ga. App. 505, 507 (1) (672 SE2d 471) (2009), the defendants2 directly

appealed to the Court from the trial court’s order. As more fully set forth below, we

now overrule Cantrell, and reverse the trial court’s denial of defendants’ motions to

dismiss.

      We start with the factual basis for Armstrong’s complaint, accepting his well-

pleaded material allegations as true.3 In January 2012, Armstrong was incarcerated

in the Tattnall County Jail. At that time he was being treated for vision problems, and

on January 19, 2012, his treating physician ordered MRIs of Armstrong’s brain,

cervical and lumbar spine. The defendants failed to ensure that Armstrong obtained

his MRIs on January 19 or at any time thereafter.

      Approximately a month later, Armstrong passed out at the jail and was

transported to the hospital. The doctors at the hospital determined that Armstrong had

suffered a stroke and attributed the cause to abscesses on and/or in his brain.



      2
        We hereinafter refer to Tattnall County and the individually named defendants
collectively as the “defendants.”
      3
        In reviewing a trial court’s order on a motion to dismiss a complaint, “we
view all the plaintiff’s well-pleaded material allegations as true, and view all denials
by the defendant as false, noting that we are under no obligation to adopt a party’s
legal conclusions based on these facts.” Love v. Morehouse College, Inc. 287 Ga.
App. 743, 743-744 (652 SE2d 624) (2007).

                                           3
Armstrong alleges that if defendants had allowed him to obtain the MRIs that were

ordered by his treating physician, these abscesses would have been detected earlier.

Accordingly, Armstrong seeks damages for the severe injuries he suffered due to

defendants’ negligent and intentional failure to provide him access to proper medical

care.

        1. Against this backdrop, we now turn to the question of whether Armstrong’s

claim is barred by sovereign immunity. “[O]ur review of this question of law is de

novo.” Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, Inc., 294

Ga. 593, 596 (2) (755 SE2d 184) (2014).

        Pursuant to a 1991 amendment to the Georgia Constitution, “sovereign

immunity extends to the state and all of its department and agencies. The sovereign

immunity of the state and its departments and agencies can only be waived by an Act

of the General Assembly which specifically provides that sovereign immunity is

thereby waived and the extent of such waiver.”4 Ga. Const. of 1983, Art. I, Sec. II,

Par. IX (e). Accordingly, under Georgia law as it presently stands “sovereign

immunity has constitutional status, and that immunity may be waived only by an act

        4
        This was not always the case. For greater detail concerning the history of
sovereign immunity law in Georgia, see Center for a Sustainable Coast, 294 Ga. at
597-598.

                                          4
of the General Assembly or by the Constitution itself.” Ga. Dept. of Corrections v.

Couch, 295 Ga. 469, 472 (2) (759 SE2d 804) (2014). See Center for a Sustainable

Coast, 294 Ga. at 599 (2) (“plain and unambiguous text of the 1991 constitutional

amendment shows that only the General Assembly has the authority to waive the

State’s sovereign immunity”); Marshall v. McIntosh County, 327 Ga. App. 416, 417

(1) (759 SE2d 269) (2014) (sovereign immunity can only be waived by a legislative

act that specifically provides for a waiver and the extent of such waiver).

      Within several years of this constitutional amendment, our Supreme Court

definitively determined that the extension of sovereign immunity to “the state and its

department and agencies” also includes counties, and that such immunity, also known

as governmental immunity, protects county employees who are sued in their official

capacities. Gilbert v. Richardson, 264 Ga. 744, 747 (2) (452 SE2d 476) (1994);

Cameron v. Lang, 274 Ga. 122, 126 (3) (549 SE2d 341) (2001) (sovereign immunity

applies to public employees sued in their official capacities because these “‘are in

reality suits against the state’”) (citation and punctuation omitted). “Accordingly, the

plain language of Paragraph IX (e) explicitly bars suits against the state or its officers

and employees sued in their official capacities, until and unless sovereign immunity



                                            5
has been waived by the General Assembly.” (Footnote omitted.) Center for a

Sustainable Coast, 294 Ga. at 599 (2).5

      In contrast, subsection (d) of the 1991amendment to Art. I. Sec. II, Par. IX

establishes a different type of immunity, known as official or qualified immunity

when an officer or an employee of the state is sued in his individual capacity.6 Banks

      5
         Although the 1991 constitutional amendment expressly authorized the
enactment of a State Tort Claims Act whereby “[t]he General Assembly may waive
the state’s sovereign immunity from suit” and the “Georgia Tort Claims Act, OCGA
§ 50-21-20 [et seq.,] was subsequently enacted to waive the sovereign immunity of
the state for the torts of its officers and employees, [the legislature] expressly
exclude[d] counties from the ambit of this waiver.” Gilbert, 264 Ga. at 746-747 (2).
OCGA § 50-21-22 (5).
      6
          That subparagraph provides in full as follows:

      Except as specifically provided by the General Assembly in a State Tort
      Claims Act, all officers and employees of the state or its departments
      and agencies may be subject to suit and may be liable for injuries and
      damages caused by the negligent performance of, or negligent failure to
      perform, their ministerial functions and may be liable for injuries and
      damages if they act with actual malice or with actual intent to cause
      injury in the performance of their official functions. Except as provided
      in this subparagraph, officers and employees of the state or its
      departments and agencies shall not be subject to suit or liability, and no
      judgment shall be entered against them, for the performance or
      nonperformance of their official functions. The provisions of this
      subparagraph shall not be waived.

                                           6
v. Happoldt, 271 Ga. App. 146, 147 (1) (608 SE2d 741) (2004). “Under the doctrine

of official, or qualified, immunity, a [state officer or employee] may be personally

liable for negligent actions taken in the performance of ministerial functions, but [is]

immune from personal liability for discretionary acts taken within the scope of their

official authority and performed without wilfulness, malice, or corruption.” Gish v.

Thomas, 302 Ga. App. 854, 857 (1) (691 SE2d 900) (2010). Thus, in analyzing a

claim of official or qualified immunity, “the single overriding factor is whether the

specific act from which liability arises is discretionary or ministerial.” (Citation and

punctuation omitted.) Marshall, 327 Ga. App. at 420 (3) (a).

      Accordingly, as can be readily seen, the doctrines of sovereign immunity and

official immunity are examined under entirely different analytical frameworks, and

the question of whether the state employee, agent or officer is performing a

discretionary as opposed to a ministerial act simply has no place in considering

whether a county or a county employee or officer sued in his official capacity is

entitled to immunity on state law damages claims under Paragraph IX (e). Hewell v.

Walton County, 292 Ga. App. 510, 513 (2) (664 SE2d 875) (2008) (“a county’s

sovereign immunity . . . applies equally to ministerial and discretionary acts”); Seay

v. Cleveland, 270 Ga. 64, 65 (1) (508 SE2d 159) (1998).

                                           7
      Unfortunately, in Cantrell v. Thurman, 231 Ga. App. 510 (499 SE2d 416)

(1998), which, like this case, involved claims based on failure to provide medical care

against the sheriff and certain named jail employees in both their official and

individual capacities, id. at 510-511, this Court improperly conflated the

sovereign/official immunity analysis, and found that “because medical care is a

fundamental right and is not discretionary in requiring medical care; . . . such act is

not subject to either sovereign immunity or official immunity.”7 (Emphasis in

original.) Id. at 514 (4). We perpetuated this error in Middlebrooks v. Bibb County,

261 Ga. App. 382, 384 (1) (582 SE2d 539) (2003) and in Howard v. City of

Columbus, 239 Ga. App. 399, 411 (2) (b) (521 SE2d 51) (1999) (physical precedent

only), by quoting this language, although in Middlebrooks we affirmed the grant of

summary judgment to the county on other grounds, 261 Ga. App. at 385 (1). And in

Howard, we actually undertook the correct analysis in determining whether sovereign

immunity protected the county and its employees who were sued in their official

capacities by looking only to whether the legislature had waived such immunity for

state law negligence claims based on an alleged failure to provide medical care. 239


      7
       However, Cantrell, went on to affirm the grant of summary judgment to the
county defendants based on other grounds. 231 Ga. App. at 516 (7).

                                          8
Ga. App. at 410, 415 (2) (a) & (4). Although we attempted to explain this confusion

in Gish, 302 Ga. App. at 863-864, our efforts obviously fell short since both plaintiffs

and trial courts, such as those in this case, continue to rely on this conflated analysis

even when faced solely with a claim of sovereign immunity under subsection (e) of

Ga. Const. of 1983, Art. I, Sec. II, Par. IX. Accordingly, we take this opportunity to

overrule and disapprove Cantrell and Middlebrooks8 to the extent those cases can be

read to hold that a discretionary/ministerial act analysis should be applied in deciding

whether the sovereign immunity of a county or a county employee sued in his official

capacity under Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e) has been waived for state

tort claims.

      Turning back to the facts of this case, Armstrong sued the county and county

employees and officials, in both their official and individual capacities. However, the

individual defendants did not move to dismiss the claims made against them in their

individual capacities, and thus the only issue before the trial court was whether




      8
        Although Howard quotes Cantrell, we find it unnecessary to overrule Howard
since that case is wholly without precedential value and hence already not binding
authority. See Court of Appeals Rule 33 (a).

                                           9
Armstrong had carried his burden of showing9 that our General Assembly has enacted

legislation waiving the county’s sovereign immunity for damages claims based on the

failure to provide medical care to an inmate.

      Armstrong asserts that OCGA § 42-5-2, which provides among other things

that the governmental unit, subdivision, or agency having the physical custody of an

inmate has the responsibility of providing the inmate with any needed medical care

and hospital attention and specifically places the burden of paying for such medical

care on the governmental unit housing the inmate, waives the County’s sovereign

immunity. However, as we have explained on several occasions, “[w]hile OCGA §

42-5-2 (a) imposes upon the county the duty and cost of medical care for inmates in

its custody, [this Court has clearly determined] it does not waive sovereign immunity

of the county or its agents or employees.” Graham v. Cobb County, 316 Ga. App.

738, 742 (1) (b) (i) (730 SE2d 439) (2012). See City of Hapeville v. Grady Memorial

Hospital Corp., 328 Ga. App. 332, 334-335 (1) (761 SE2d 871) (2014) (physical

precedent only) (“In cases involving an inmate’s claims against the State or its

      9
        Armstrong clearly had the burden to establish waiver. As we have previously
explained, “[s]overeign immunity is not an affirmative defense that must be
established by the party seeking its protection. Instead, immunity from suit is a
privilege and the waiver must be established by the party seeking to benefit from the
waiver. (Citation and punctuation omitted.) Happoldt, 271 Ga. App. at 148 (1).

                                         10
subdivision for failure to provide medical care, this Court has taken the view . . . that

OCGA § 42-5-2 did not constitute an express waiver in such cases.”); Gish, 302 Ga.

App. at 862-863 (4) (OCGA § 42-5-2 imposes cost of medical care on the county but

did not waive sovereign immunity of the county). Moreover, our legislature amended

this statute in 2009 after we had issued several opinions on this issue, and if it had

disagreed with our conclusions in these cases or intended a different result, it could

have changed the statute or enacted other legislation to expressly provide a waiver of

sovereign immunity. And although Armstrong also cites OCGA § 42-4-4 (a) (2),

which places certain duties on a sheriff to provide an inmate with medical care, that

statute also fails to include language waiving the immunity otherwise granted to a

county sheriff acting in his official capacity. Accordingly, Armstrong’s state law tort

claims against Tattnall County and the individually named defendants who were sued

in their official capacities are barred by sovereign immunity, and the trial court should

have dismissed these claims.10

      10
         As our appellate courts have explained, this does not mean that plaintiffs
seeking recourse based on allegations that a government denied or provided
inadequate medical treatment to an inmate are necessarily without recourse because
such claims may in some circumstances state a cause of action under 42 USC § 1983.
See City of Atlanta v. Mitcham, 296 Ga. 576, 581, n. 4 (769 SE2d 320) (2015); City
of Hapeville, 328 Ga. App. at 335, n. 12. We again note, however, that Armstrong
dismissed his federal claims, and those are not before us.

                                           11
      2. Because of our holding in Division 1, we need not reach the issue of whether

Armstrong’s claims against Tattnall County were also subject to dismissal based on

the running of the statute of limitations or other reasons.

      Judgment reversed. Doyle, C. J., Andrews, P. J., Ellington, P. J., Dillard,

Boggs, Ray and Branch, JJ., concur. Barnes, P. J., Phipps, P. J., Miller and

McFadden, JJ., concur fully and specially.




                                          12
 A15A0163. TATTNALL COUNTY, GEORGIA et al. v.

       ARMSTRONG.

      BARNES, Presiding Judge, concurring fully and specially.

      I concur fully in the result and all that is said in the majority opinion. I write

separately to note that the nomenclature we use in this area of law is extremely

confusing and that, perhaps, we should consider renaming these terms in future cases.

Currently, if John Doe is sued in his official capacity, the doctrine of sovereign

immunity applies. If John Doe is sued in his individual capacity for actions taken

within the scope of his official duties, the doctrine of official (or qualified) immunity

applies.   In other words, the doctrine of official immunity does not apply to

defendants sued in their official capacity.

      We could make the concepts easier to distinguish if we replace “official

immunity” with “qualified immunity” when analyzing whether a person is immune

from suit. Then, if John Doe were sued in his official capacity, we would continue to

apply the doctrine of sovereign immunity, but if John Doe were sued in his individual
capacity for actions taken within the scope of his official duties, we would apply the

doctrine of qualified immunity (instead of official immunity). The federal courts use

the terminology “qualified immunity” rather than “official immunity,” and the

analysis is easier to follow and remember. For example, in considering a claim

brought by a prisoner against prison officials for refusing to allow him to wear his

personal Santeria beads, the United States Eleventh Circuit Court of Appeals

explained that, “While an officer can assert personal-immunity defenses like qualified

immunity for suits against him in his individual capacity, the only immunity defenses

he can assert in suits against him in his official capacity are forms of sovereign

immunity.” Davila v. Gladden, 777 F3d 1198, 1209 (11th Cir. 2015)

      I recognize that our appellate courts have analyzed immunity issues in terms

of “sovereign” versus “official” for many years. We often begin the immunity

analysis of an official sued in his individual capacity by describing it as “official or

qualified,” but we generally drop the “qualified” adjective and complete the analysis

using only the adjective “official.” As the majority notes, confusion remains.

Overruling Middlebrooks and Cantrell should clarify the immunity issues related to

inmate claims that are raised in this case. But the continued confusion in this area

must be attributed at least in part to the non-descriptive way we label the two forms


                                           2
of immunity, and we could further clarify the analysis by describing the immunity of

an official sued in his individual capacity as “qualified.”

      I am authorized to state that Phipps, P. J., Miller and McFadden, JJ., join in this

special concurrence.




                                           3
