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Georgia Renewal Statute Requires Prepayment of Costs of Prior Suit

On November 17, 2017, the Eleventh Circuit Court of Appeals affirmed the dismissal of a lawsuit brought under Georgia’s renewal statute because the plaintiff failed to pay the costs from a prior case or seek in forma pauperis (IFP) status when filing the new suit.

While incarcerated at the Hall County Detention Center in 2011, Yasund Q. Hancock filed a civil rights action alleging that guards repeatedly struck him with a metal flashlight and sprayed him with pepper spray while uttering racial slurs. Being indigent, Hancock sought and was granted IFP status by a federal magistrate.

He was released on June 3, 2011, and reapplied for IFP status. His motion was granted and he was informed he did not have to pay an additional filing fee to proceed. His suit was subsequently dismissed for failure to exhaust administrative remedies and as being barred by Heck v. Humphrey, 512 U.S. 477 (1994). Hancock was denied IFP status on appeal because the district court and the Eleventh Circuit found his appeal was frivolous; it was dismissed for failure to prosecute after Hancock failed to pay the filing fee.

On September 5, 2014, Hancock returned to federal court by filing his complaint again. The district court dismissed it, because he had failed to pay the costs in the previous suit.

On appeal, the Eleventh Circuit held the matter hinged upon the requirements of the renewal statute, O.G.A. § 9-2-61. The appellate court found that Hancock had filed his new action within six months of the involuntary dismissal as required by statute; it also found the renewal statute applies to both voluntary and involuntary dismissals.

The dispositive issue was whether Hancock met the renewal statute’s requirement to pay the costs of the prior action before commencing a second suit. Hancock argued that “his failure to pay should be forgiven under the judicially recognized good-faith exception to the renewal statute.”

The Eleventh Circuit found that Hancock admitted he was aware he owed costs from his prior suit and had never paid them. The appellate court pointed to Georgia precedent that held the good-faith exception temporarily forgives a plaintiff who believes there are no costs owed and has no way of finding out otherwise, but once costs are discovered they “must be paid within a reasonable time in order to preserve jurisdiction.”

The Court of Appeals found Hancock also was not entitled to Georgia’s generous treatment of paupers. The problem for Hancock was that he paid the $400 filing fee in the second case, but failed to alert the district court to the fact that he owed costs from the prior suit and did not seek IFP status. Such notice is required under Georgia case law with respect to the renewal statute.

Accordingly, the district court’s order of dismissal was affirmed. See: Hancock v. Cape, 875 F.3d 1079 (11th Cir. 2017). 


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Related legal case

Hancock v. Cape