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Davis v. Standifer10/11/2005
out merit with respect to GSP and DPS, since the state and its agencies are not "persons" subject to suit for damages under 42 USC § 1983. Mattox, 221 Ga. App. at 547 (2). In contrast, Davis' amended complaint does contain allegations of conduct by Standifer that, if true, violated the United States Constitution and would support a claim against him in his individual capacity for damages pursuant to 42 USC § 1983. See generally Franklin v. Gwinnett County Public Sch., 200 Ga. App. 20, 24 (1) (407 SE2d 78) (1991) (right to be free from sexual abuse perpetrated by government official protected by United States Constitution).
However, appellees contend that Davis voluntarily dismissed her federal constitutional claims with prejudice after appellees removed the case to federal court, leading the federal district court to remand the case back to state court. Appellees assert that no federal constitutional claims remain pending in this case as a result of the voluntary dismissal.
In light of Davis' argument on appeal that Standifer's motion to dismiss should not have been granted on her federal constitutional claims, there is an apparent factual dispute between the parties over whether Davis' federal constitutional claims remain pending in this case or were voluntarily dismissed with prejudice. Although resolution of this issue should be a straightforward exercise, we cannot resolve the issue given the incomplete state of the existing record. The record contains none of the pleadings filed with respect to the removal and remand that appellees allege took place or with respect to the alleged voluntary dismissal of the federal constitutional claims. Nor are there any stipulations between the parties in the record that shed light on this question. And, although the trial court heard oral argument on the motions to dismiss, no transcript of that argument was included in the record on appeal. Finally, it is unclear from the trial court's April 2, 2004 order granting the motions to dismiss whether the trial court considered or ruled upon the status of Davis' federal constitutional claims.
Under these circumstances, we remand the case to the trial court to address the dispute over Davis' federal constitutional claims. On remand, the trial court should hear from the parties and rule on whether Davis' federal constitutional claims brought against Standifer pursuant to 42 USC § 1983 remain pending in this case. If those claims have not been voluntarily dismissed with prejudice and in fact remain pending, then Davis is entitled to proceed with those claims against Standifer in his individual capacity based on the allegations found in her amended complaint.
Judgment affirmed and remanded with direction. Blackburn, P. J., and Miller, J., concur.
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