Justices Decline Appeal in Tossed Case of Man Jailed 17 Months Too Long
Kevin Rose's negligence suit against the Department of Corrections was dismissed when a judge determined it was a claim for false imprisonment and barred by sovereign immunity.
April 22, 2020 at 02:03 PM
5 minute read
With the Georgia Supreme Court's decision not to hear his appeal, a man who spent 17 months in prison after he was due to be released is out of options for seeking recompense for the time he served.
It's the "end of the line" said the lawyer for Kevin Rose, whose negligence complaint against the Georgia Department of Corrections was thrown out by a Fulton County judge who decided it was actually a false imprisonment action and thus barred by sovereign immunity.
"A prisoner in Georgia has no civil remedy for damages available when they are negligently detained past the expiration of their prison sentence," said Filipovits Law Firm principal Jeffrey Filipovits via email.
"We think this rule is a misapplication of the immunities of the [Georgia Tort Claims Act] and hope the court will give the question the attention it deserves in some future case," he said.
As detailed in court filings, Rose pleaded guilty to possession of methamphetamine in 2011 and was sentenced to 10 years in prison. But he was allowed to serve only two years with the rest of the sentence probated; among the conditions of his probation was banishment from Whitfield and Murray counties.
In 2014 Rose went to visit family in Whitfield County, where he was arrested and his probation revoked.
The probation revocation order read that Rose was "hereby ordered to serve the balance of the original sentence of 10 years suspended upon service of two years."
But the Department of Corrections computed Rose's sentence as requiring him to serve 2,320 days—more than six years.
According to his complaint, in 2015 Rose began raising the issue of his wrongful confinement with the warden and other staff members at Autry State Prison, northwest of Valdosta, as well as with the state Board of Pardons and Paroles; he also filed actions in federal court seeking his release.
Under the two-year sentence ordered by the court, Rose was to have been released April 20, 2016; he was instead finally freed Sept. 27, 2017.
In 2018, Zack Greenamyre with Mitchell & Shapiro filed suit on Rose's behalf in Fulton County State Court naming the Department of Corrections and several individual defendants. The complaint asserted claims for negligent performance of ministerial duties and deliberate indifference to the mishandling of his sentencing; it was filed under the Georgia Tort Claims Act, which waives sovereign immunity for state actors sued for their actions performed in the scope of their official duties.
But the GTCA includes several exceptions, barring claims including those for false imprisonment, and the GDOC filed a motion to dismiss arguing among other things that Rose's negligence claims were actually for false imprisonment.
Judge Fred Eady agreed and dismissed the case; the Georgia Court of Appeals upheld Eady's ruling in September.
The opinion, written by Judge Ken Hodges, with the concurrence of Presiding Judge Stephen Dillard and Judge Elizabeth Gobeil, said Rose's argument that his claims constituted negligent breach of ministerial duties, not the intentional tort of false imprisonment, could not stand.
Citing the court's own precedent in a "virtually identical situation" in 2007's Watson v. Ga. Dept. of Corrections (285 Ga. App. 143), in which a negligence suit filed by a man incarcerated more than a year past his release date was deemed barred by sovereign immunity, Hodges said Rose's was similarly void.
"Our decision in Watson controls this case," Hodges wrote. "Recognizing that Watson is dispositive, Rose 'urges that the rule in Watson conflicts with Georgia Supreme Court precedent and the common law rule of torts because it conflates a claim for negligence in computing a sentence with the intentional tort of false imprisonment' and requests us to 'revisit the holding of Watson,'" Hodges wrote. But, he said, "despite the fact that Rose labels his claim as one of negligence, the facts and allegations in his complaint contend that he was unlawfully imprisoned and stated a claim for false imprisonment."
On Monday, the state Supreme Court refused to entertain Rose's appeal of that ruling.
Greenamyre said the justices should have considered the issue.
"Generally, when state officials negligently breach mandatory duties not involving the exercise of discretion, the Legislature has provided that injured Georgians can sue under the Georgia Tort Claims Act," he said in an email.
"We alleged that the imposition of the sentence as ordered by a Superior Court is a ministerial duty, and no one has disagreed with that. However, unfortunately, the Court of Appeals concluded it was bound by earlier precedent indicating that there is an exception to the general rule for persons who are incarcerated beyond their release date."
Thus, said Greenamyre, "Kevin Rose is without any remedy under state or federal law, despite him being jailed 17 months too long."
"Our office gets a significant number of these kinds of calls, which leads us to believe over-detention like this is not an isolated occurrence," he said.
A spokesperson for the office of State Attorney General Chris Carr declined to comment on the case.
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