Stephen Simon sued the City of placeCityAtlanta and others concerning his arrest and detention in August 2001. The trial court dismissed the action as time-barred because it was not filed within the limitation period established in OCGA § 9-3-33. . We find that Simon filed a proper ante litem notice, that he asserted this fact below, and that the statute of limitations did not run during the pendency of his claim before the City. We therefore reverse. A motion to dismiss for failure to state a claim should not be sustained unless 1 the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof, and 2 the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor. Citation omitted. McLain v. Mariner Health Care, Inc. , 279 placeStateGa.App. 410, 411 1 631 SE2d 435 2006. So viewed, the record shows that on August 12, 2001, Simon was arrested for taking a gun from a city employee who had booted the limousine Simon was driving and throwing it on the ground. Simon told the arresting officer that he was a diabetic and needed medication. The officer refused to accept the medication from Simon’s wife, placed Simon in a holding cell at placePlaceNameGradyPlaceTypeHospital, and he remained there, with periodic beatings, for three days. In the medical ward, he was forcibly restrained while a catheter was inserted into his penis. Simon was then taken to the city jail, where the nurse denied his requests for insulin. After he was released from jail, Simon was transported to placeCitySt. Josephs Hospital Emergency Room. The attending physician determined that had treatment been further delayed, Simon might have died.
On April 14, 2004, Simon filed suit against the City of placeCityAtlanta, a number of public officials, and others for torts including false arrest, false imprisonment, battery, and aggravated assault, resulting in damages including insulin shock, the amputation of a toe, and his wife’s loss of consortium. In its answer, the City of placeCityAtlantaclaimed that Simon’s action was time-barred under OCGA § 9-3-33, which provides that “actions for injuries to the person must be brought within two years after the right of action accrues.” Noting that “there appears to be no opposition filed herein,” the trial court granted the City’s motion to dismiss on this ground.
