Summary
In Conklin v. Zant, 198 Ga. App. 543 (402 S.E.2d 319), this Court reversed a denial of filing of plaintiff Conklin's complaint under OCGA § 9-15-2 (d). Upon remand to the superior court, plaintiff's complaint was filed and then dismissed on defendant's motion.
Summary of this case from Conklin v. ZantOpinion
A90A2376.
DECIDED FEBRUARY 11, 1991.
Denial of filing. Butts Superior Court. Before Judge Smith.
Robert Conklin, pro se. Michael J. Bowers, Attorney General, William F. Amideo, Assistant Attorney General, for appellees.
Robert Conklin, an inmate at the Georgia Diagnostic Classification Center at Jackson, filed a pro se action in superior court alleging that prison officials had unlawfully appropriated funds from his inmate account to satisfy an order of restitution imposed after a prison disciplinary action resulted in his being found guilty of damaging state property. Conklin presented the action in forma pauperis, and the trial court refused to allow it to be filed on the ground that it "fail[ed] to set out sufficient grounds upon which relief may be granted." Conklin appeals from this ruling, contending the trial court improperly denied filing under the standard set forth in OCGA § 9-15-2 (d). We agree and reverse.
OCGA § 9-15-2 (d) provides, in pertinent part, that "[w]hen a civil action is presented for filing [with an affidavit of indigence in lieu of a filing fee] 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."
In the complaint, appellant alleged that the Department of Corrections lacked authority to order restitution in appellant's case because OCGA § 17-14-3, empowering the Department to order inmates to make restitution, is restricted to cases in which restitution is a condition of some "relief," and no relief, as defined in OCGA § 17-14-2 (6), was ordered in his case. We intimate no opinion as to the ultimate merit of appellant's arguments, which have not been passed on below, "`for "this court will review and correct only such error as was made in the trial court. . . . (Cit.)" [Cit.]" [Cit.]" Westwind Corp. v. Washington Fed. c. Assn., 195 Ga. App. 411 (1) ( 393 S.E.2d 479) (1990). We have found no authority, however, addressing the argument made by appellant, and it is conceivable that a court might construe the statutes involved to afford appellant relief. Accordingly, as the complaint presented by appellant does not demonstrate "on its face . . . a complete absence of any justiciable issue of law or fact," the trial court erred by denying filing.
Judgment reversed and case remanded with direction. McMurray, P. J., concurs. Carley, J., concurs in the judgment only.