SECOND DIVISION
MILLER, P. J.,
HODGES and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
September 2, 2021
In the Court of Appeals of Georgia
A21A1000. MCCLAIN v. CARROLLTON POLICE
DEPARTMENT.
MILLER, Presiding Judge.
Timothy Lamar McClain, Jr., proceeding pro se, seeks review after the trial
court dismissed his civil lawsuit against the City of Carrollton Police Department. On
appeal, McClain argues that (1) the trial court erred in determining that the
Department is not an entity that can sue or be sued; (2) the trial court erred in
dismissing his complaint for failing to provide an ante litem notice to the Department
or the City of Carrollton; (3) the trial court erred in determining that his complaint did
not comply with the Georgia Civil Practice Act; and (4) the trial court erred in
determining that he did not properly effect service of process on the Department. We
agree with the trial court that the City of Carrollton Police Department is not an entity
that is capable of being sued, and so we affirm.
We review the grant of any motion to dismiss de novo, and a motion to
dismiss should not be granted unless 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. We
construe the pleadings in the light most favorable to the plaintiff with
any doubts resolved in the plaintiff’s favor.
(Citations and punctuation omitted.) Harrell v. City of Griffin, 346 Ga. App. 635, 636
(816 SE2d 738) (2018).
The record shows that McClain filed a lawsuit for defamation, malpractice, and
illegal “procession” against the City of Carrollton Police Department.1 The
Department answered and filed a motion to dismiss the complaint on various grounds.
The trial court granted the motion to dismiss, concluding that (1) the Department is
not an entity that has the capacity to sue or be sued; (2) McClain did not allege or
show that he filed a proper ante litem notice on the Department or the City of
1
The entirety of McClain’s complaint reads as follows: “Malpractice Class Act
of defamation & illegal procession Lawsuit. For the amount of
$999,999,999,999,999,999,999,999,999,999,999,999,999,999,999,999,999,999,99
9,999,999,999,999,999,999,999,999,999.”
2
Carrollton; (3) the complaint failed to allege facts stating a claim upon which relief
can be granted; and (4) McClain failed to show that he perfected service of process
on the Department. This appeal followed.
1. McClain first argues that the trial court erred in determining that the
Carrollton Police Department is not an entity that has the capacity to sue or be sued
because it was able to retain an attorney and obtain a dismissal of his case. We
disagree.
As our Supreme Court has explained, in every suit there must be a legal
entity as the real plaintiff and the real defendant. And Georgia law
recognizes only three classes of legal entities with the inherent power to
sue and be sued: (1) natural persons; (2) an artificial person (a
corporation); and (3) such quasi-artificial persons as the law recognizes
as being capable to sue.
(Citations and punctuation omitted.) Myers v. Clayton County Dist. Attorney’s Office,
357 Ga. App. 705, 708 (2) (849 SE2d 252) (2020). Thus, the question is not whether
the Department was able to retain legal counsel but instead whether Georgia law
recognizes the Department as an entity separate from the City such that it can be sued
separately.
3
It appears that no Georgia court has specifically addressed whether a municipal
police department is an entity capable of suing or being sued. We have recently
determined that county police departments are not separately capable of being sued
because, “as mere arms of such governments, [they] are not generally considered legal
entities capable of being sued.” Myers, supra, 357 Ga. App. at 709 (2). At least two
federal district courts have also applied Georgia law to conclude that municipal police
departments are not legal entities subject to suit. See Bunyon v. Burke County, 285
FSupp.2d 1310, 1328-1329 (III) (A) (1) (S. D. Ga. 2003) (a municipal police
department is not subject to direct suit); Shelby v. City of Atlanta, 578 FSupp. 1368,
1370 (I) (N. D. Ga. 1984) (same).
For the same reasons that we found persuasive in Myers, we similarly conclude
that municipal police departments are not separate legal entities subject to suit
because they are merely agents or instrumentalities of the municipality. As a
municipal corporation, the City of Carrollton itself “can sue and be sued only in the
manner provided by its charter, and in its appropriate corporate name.” State Highway
Dept. of Ga. v. Reed, 211 Ga. 197 (1) (84 SE2d 561) (1954); see also City of
Carrollton v. Word, 215 Ga. 104 (109 SE2d 37) (1959) (discussing the City of
Carrollton’s municipal charter). A city’s police department “is an integral part of the
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[city’s] government and is merely the vehicle through which the [c]ity government
fulfills its policing functions. For this reason the Department is not an entity subject
to suit[.]” Shelby, supra, 578 FSupp. at 1370 (I); see also Brownlee v. Dalton Bd. of
Water, Light & Sinking Fund Commrs., 59 Ga. App. 538, 540 (3) (1 SE2d 599)
(1939) (the utilities department of a municipality “[is] not a body corporate capable
of being sued, but [is] a mere department of the municipality having control of the
public utilities under appointment and direction of the governing body of the
municipality”) (punctuation omitted).
Accordingly, the trial court correctly dismissed McClain’s complaint because
the Carrollton Police Department is not a proper party capable of being sued.2
2. Because the trial court properly dismissed McClain’s complaint for failure
to name a proper party defendant, we need not reach his other claims of error.
Judgment affirmed. Hodges and Pipkin, JJ., concur.
2
While we recognize that “we are required to hold pro se pleadings to less
stringent standards than formal pleadings drafted by lawyers,” (Citation and
punctuation omitted.) Babalola v. HSBC Bank, USA, N.A., 324 Ga. App. 750, 750 n.2
(751 SE2d 545) (2013), McClain’s complaint does not contain any facts or
allegations from which we could even liberally construe an intent to sue any
defendant other than the Department. Dismissal of the entire action on the basis that
the Department is not a proper party is therefore warranted.
5