Albert T. Ehlers, Plaintiff-appellant, v. City of Decatur, Georgia, Defendant-appellee, 614 F.2d 54 (5th Cir. 1980)

In 1975 appellant Ehlers placed a "For Rent" sign on his property in Decatur, Georgia, in violation of a city ordinance that prohibited such signs. Decatur police removed the sign, and in 1977 Ehlers brought this suit for damages under 42 U.S.C. § 1983. He alleged that the ordinance deprived him of various constitutional rights and that he had been unable to rent his property as a result of the city's action.¹  The district court granted summary judgment for the city on the ground that Ehlers had not complied with Georgia's ante-litem notice statute, Ga.Code Ann. § 69-308, and Ehlers appeals.

The anti-litem notice statute²  provides that in order to bring a suit for damages³  against a municipality the plaintiff must first present the underlying claim, in writing, to the municipality. The claim must be presented within six months of the events on which it is based. The municipality must act on the claim within 30 days. Because Ehlers did not allege in his complaint that he had complied with the statute, his claim is barred under Georgia law if the ante-litem notice requirement is constitutionally valid. Thompson v. City of Atlanta, 219 Ga. 190, 132 S.E.2d 188 (1963). We turn then to the constitutional question.

In a § 1983 action a federal court looks to state law for the appropriate limitations period. Prince v. Wallace, 568 F.2d 1176 (5th Cir. 1978); Donaldson v. O'Connor, 493 F.2d 507 (5th Cir. 1974), Vacated and remanded on other grounds, 422 U.S. 563, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975). The district court interpreted § 69-308 as a statute of limitations and held that Ehlers' failure to give notice was an absolute bar to his suit against the city.

The ante-litem notice provision, however, is more than a statute of limitations. A statute of limitations is "a statute of repose, designed to compel suit within a reasonable time . . . ." Dedmon v. Falls Products Inc., 299 F.2d 173, 178 (5th Cir. 1962). The statute at issue here consists of both a time limitation and a requirement of exhaustion of administrative remedies. See City of Atlanta v. Barrett, 102 Ga.App. 469, 116 S.E.2d 654, 657 (1960). A litigant, however promptly he acts, is prevented from bringing suit unless he has notified the municipality of his intention to do so. Moreover, once he provides the requisite notice, he must still postpone his suit until either the municipality acts on his claim or 30 days elapses. Saunders v. City of Fitzgerald, 113 Ga. 619, 38 S.E. 978 (1901). This is not a jurisdictional prerequisite but an explicit requirement of exhaustion of remedies. See Paine v. Baker, 595 F.2d 197 (4th Cir. 1979).

Federal courts may not require exhaustion of state administrative or judicial remedies in a § 1983 action for damages for deprivation of a constitutional right. Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); Wells Fargo Armored Serv. Corp. v. Georgia Public Serv. Comm'n, 547 F.2d 938, 939-940 n.1 (5th Cir. 1977); Bryant v. Potts, 528 F.2d 621 (5th Cir. 1976). States may not statutorily burden access to the federal courts with requirements federal courts themselves are prohibited from imposing. U.S.Const. art. VI, cl. 2 (Supremacy Clause). Contrast De Almanza v. Laredo Water Works Syst., 582 F.2d 970 (5th Cir. 1978) (ante-litem notice constitutional as applied to state law claim in diversity suit). Georgia's ante-litem notice requirement therefore may not constitutionally be applied to this § 1983 action for damages for deprivation of a constitutional right.

REVERSED and REMANDED.