                               FIRST DIVISION
                                BARNES, P. J.,
                           MCMILLIAN and REESE, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                       June 4, 2018




In the Court of Appeals of Georgia
 A18A0197. ROBBINS v. ANDERSON et al.

      REESE, Judge.

      Proceeding pro se, indigent prison inmate Marquise Robbins sought to file a

civil action in the Superior Court of Tattnall County against James Anderson and

Robert Toole1 for damages based upon their failure to provide sufficient food to, and

for not meeting the basic nutritional needs of, inmates in the Segregation Housing

Unit (“SHU”) at Georgia State Prison (“GSP”). In an order, the trial court stated that

his pleading failed to state a cause of action and denied his request to proceed on the

complaint. This appeal followed. For the reasons set forth infra, we reverse the trial




      1
        According to the complaint, Toole is the former warden of Georgia State
Prison, and Anderson is the Food Service Supervisor.
court’s order and remand this case with direction to the superior court clerk to file the

complaint.

      The record shows that the Appellant, who was incarcerated at GSP from June

through December 2014, filed a pro se “Inmate Form for Civil Action,” alleging that

the inmates housed in the SHU of GSP were “unjustifiably deprived of the basic

necessity of adequate food to sustain their health,” in violation of OCGA § 42-5-2

(a),2 and their civil rights under 42 USC § 1983.3 Specifically the Appellant alleged

that, inter alia, from July through October 2014, Warden Toole and Anderson allowed

the following conditions to persist unabated in the SHU of GSP, despite actual notice

of the problems: inmates were provided with inadequate food portions, spoiled food,



      2
        OCGA § 42-5-2 (a) states, in pertinent part, “it shall be the responsibility of
the governmental unit, subdivision, or agency having the physical custody of an
inmate to maintain the inmate, furnishing him food, clothing, and any needed medical
and hospital attention[.]”
      3
         42 USC § 1983 states, in pertinent part, that “[e]very person who, under color
of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or
causes to be subjected, any citizen of the United States . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other proper proceeding for
redress[.]” See Brown v. Dorsey, 276 Ga. App. 851, 853 (625 SE2d 16) (2005) (To
state a claim under 42 USC § 1983, a plaintiff “must show a deprivation of a federal
right by a person acting under color of state law.”) (punctuation and footnote
omitted).

                                           2
and food that had been improperly “watered down;” meals lacked sufficient

nutritional and caloric value to qualify as a “wholesome meal;” food preparers and

servers failed to ensure that “hot” meals were at least 140 degrees, and “hot” meals

were “continuously” served cold; and food service workers were not given proper

training in safe food preparation techniques and how to determine correct portion

sizes. According to the complaint, these “hazardous and extreme food conditions”

posed a “substantial risk of serious harm to inmates’ health and safety.”

      The Appellant asserted that, as a result of these conditions, he suffered, inter

alia, headaches, severe stomach pain, dizziness, constant fatigue, and weakness in his

extremities. He also complained that, due to his incarceration in the SHU, he had no

opportunity for relief from these hazardous conditions. The complaint asserted that

the Appellees’ acts and omissions in allowing the unsafe conditions to persist violated

the Department of Corrections’ standard operating procedures and dietary guidelines,

as well as state statutes.4 The Appellant also asserted a civil rights claim under 42

USC § 1983, alleging that the conditions violated his Eighth Amendment rights under

the United States Constitution in that they constituted cruel and unusual punishment.


      4
       The Department of Corrections’ policies and procedures are not part of the
appellant record.

                                          3
      According to the complaint, the Appellant filed a grievance with prison

officials, but “the issue[s] [were] never rectified.[.]” The trial court denied the filing

of the complaint, pursuant to OCGA § 9-15-2 (d),5 ruling that “the pleading shows

on its face such a complete absence of justiciable issue of law or fact that it cannot

reasonably be believed that any court could grant the requested relief against any

defendant named in the proceedings.” This appeal followed.

      When reviewing on appeal from an order denying the filing of an indigent

inmate’s pro se complaint, we view the complaint with “considerable indulgence, and

a complaint should not be dismissed without filing unless it appears beyond doubt

that the plaintiff can prove no set of facts in support of his claim which would entitle




      5
        OCGA § 9-15-2 (d) states in relevant part,
      [w]hen a civil action is presented for filing under this Code section by
      a party who is not represented by an attorney, the clerk of court shall not
      file the matter but shall present the complaint or other initial pleading to
      a judge of the court. The judge shall review the pleading and, if the
      judge determines that the pleading shows on its face such a complete
      absence of any justiciable issue of law or fact that it cannot be
      reasonably believed that the court could grant any relief against any
      party named in the pleading, then the judge shall enter an order denying
      filing of the pleading. . . . An order denying filing shall be appealable in
      the same manner as an order dismissing an action.

                                            4
him to some relief.”6 With these guiding principles in mind, we turn now to the

Appellant’s specific claim of error.

      The Appellant argues that the trial court erred in denying the filing of his civil

action under OCGA § 9-15-2 (d). We agree.

      Prior to allowing an indigent plaintiff to file a complaint, under OCGA § 9-15-

2 (d), the trial court must first determine whether the facts alleged in the complaint

state a claim for relief for which the plaintiff may recover.7 “The [trial] court can deny

filing only if the pleading is completely devoid of any justiciable issue of law or fact.

A complaint is sufficient if it places the defendant on notice of the claim against

him[.]”8

      The record is silent as to the reasons the trial court concluded the Appellant’s

complaint did not meet the threshold requirements of OCGA § 9-15-2 (d). Construing

the allegations of the Appellant’s complaint in the light most favorable to him,9 we


      6
        Thompson v. Reichert, 318 Ga. App. 23, 24 (733 SE2d 342) (2012)
(punctuation and footnote omitted).
      7
           Gamble v. Ware County Bd. of Educ., 253 Ga. App. 819 (561 SE2d 837)
(2002).
      8
          Id. at 819 (punctuation and footnotes omitted).
      9
          See Thompson, 318 Ga. App. at 25.

                                            5
find that the complaint stated justiciable claims against the Appellees based on their

alleged failure to provide him with adequate, nutritional, and safely prepared food,

as required by state law and the Department of Corrections policies.10 The complaint

was also adequate to assert a claim for violations of the Appellant’s civil rights under

42 USC § 1983.11 Although we express no opinion as to the merits of the Appellant’s

claims, we find that the trial court erred in refusing to file his complaint.12

      The Appellees argue, however, that the complaint must be dismissed because

the Appellant failed to provide proper notice of his claims under the Georgia Tort


      10
        See id. at 24-25 (The indigent pro se defendant’s pleading stated justiciable
claims for false arrest, false imprisonment and civil rights violations that met the
threshold requirements of OCGA § 9-15-2 (d).).
      11
         See Whitley v. Albers, 475 U. S. 312, 319 (II) (106 SCt 1078, 89 LE2d 251)
(1986) (In order to state a claim for cruel and unusual punishment under the Eighth
Amendment, it is not necessary to assert that the defendant acted with an “express
intent to inflict unnecessary pain,” and “harsh conditions of confinement may
constitute cruel and unusual punishment unless such conditions are part of the penalty
that criminal offenders pay for their offenses against society.” Further, “[t]o be cruel
and unusual punishment, conduct that does not purport to be punishment at all must
involve more than ordinary lack of due care for the prisoner’s interests or safety. . .
. It is obduracy and wantonness, not inadvertence or error in good faith, that
characterize the conduct prohibited by the Cruel and Unusual Punishments Clause,
whether that conduct occurs in connection with establishing conditions of
confinement, supplying medical needs, or restoring official control over a tumultuous
cellblock.”) (citations and punctuation omitted).
      12
           See Thompson, 318 Ga. App. at 25.

                                           6
Claims Act, i. e., he did not attach the required ante litem notice and delivery receipts

to his complaint. This argument is premature.

      Pursuant to OCGA § 50-21-26 (a) (2), “no person who has a tort claim against

the state may bring an action against the state on that claim without first giving

notice[.]”13 Yet, the lack of proper notice does not prevent filing of the complaint

under OCGA § 9-15-2 (d) because the complaint may be amended after filing to

include the ante litem notice certification.14

      The Appellees also contend that the trial court properly refused to file the

Appellant’s federal civil rights claim because the Appellant had previously filed a

federal lawsuit asserting the same claim and as a result, the instant claim was barred

by res judicata. Although the Appellant appears to concede that he filed a federal

lawsuit “dealing with the same facts,” the Appellees are not yet parties to the suit, so



      13
           DeFloria v. Walker, 317 Ga. App. 578, 580 (732 SE2d 121) (2012).
      14
        See OCGA § 50-21-26 (a) (4) which states,
      Any complaint filed pursuant to this article must have a copy of the
      notice of claim presented to the Department of Administrative Services
      together with the certified mail or statutory overnight delivery receipt or
      receipt for other delivery attached as exhibits. If failure to attach such
      exhibits to the complaint is not cured within 30 days after the state raises
      such issue by motion, then the complaint shall be dismissed without
      prejudice[.]

                                           7
their assertion of the affirmative defense of res judicata does not authorize the court’s

refusal to file the instant suit.15

       Accordingly, we reverse the trial court’s order. On remand, the clerk of the

Superior Court of Tattnall County is directed to file the Appellant’s complaint.

       Judgment reversed, and case remanded with direction. Barnes, P. J., and

McMillian, J., concur.




       15
            Thompson, 318 Ga. App. at 26.

                                            8
