Billups v. Carter

Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and
Agee, JJ., and Russell, S.J.

PAULA BILLUPS OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 040268 November 5, 2004

CAMERON CARTER, et al.

FROM THE CIRCUIT COURT OF FLUVANNA COUNTY
John R. Cullen, Judge

Paula Billups (the plaintiff), a prisoner at the Fluvanna

Correctional Center for Women (the center), brought an action

under 42 U.S.C. § 1983 in the trial court against the Virginia

Department of Corrections (VDOC) and Cameron Carter, formerly

a supervisor in the kitchen at the center and an employee of

VDOC. The claim against Carter included a count for assault

and battery. That action was filed on December 23, 2002. On

January 24, 2003, the plaintiff filed a second § 1983 action

in the same court against Robert C. Armstrong and E.R.

Barrack, investigators employed by VDOC. The two actions were

never formally consolidated, but the parties and the trial

court treated them as one.

The defendants in both cases filed demurrers, pleas in

bar and motions to dismiss, all of which the trial court

sustained. We granted appeals in both cases, which present

questions concerning the requirements of notice under the

Virginia Tort Claims Act (the Act), the exhaustion of

administrative remedies as a prerequisite to filing suit, the
applicable statute of limitations, and the amendment of

pleadings to correct misnomer or to add parties.

Facts and Proceedings

Because the cases were decided on the pleadings,

supplemented by affidavits, we will summarize the facts as set

forth in those filings. While incarcerated at the center, the

plaintiff was assigned to work in the kitchen, where Cameron

Carter was employed as a supervisor with authority to direct

her work and report her for any misconduct that could lead to

her punishment. Under duress (Carter’s threat of false

reports of misconduct on her part), the plaintiff unwillingly

engaged in sexual acts with him during the latter part of 2000

and early 2001. The last such act occurred on February 12,

2001, which was Carter’s last day of employment with VDOC.1

The plaintiff reported Carter’s conduct to “appropriate

departmental officials” in February 2001, and “cooperated with

[them] as they conducted their investigation.” On January 11,

2002, the plaintiff’s attorney wrote a letter to the warden of

the center, requesting compensation for the injuries inflicted

on her by Carter during the time of his employment by VDOC.

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Carter left his employment because of reports of similar
misconduct with other female prisoners. He was indicted for
his abuse of the plaintiff, entered a plea of guilty, and was,
on October 12, 2001, convicted by the Circuit Court of
Fluvanna County of a felony under Code § 18.2-64.2. He was
sentenced to incarceration for a term of two years, four
months.

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The warden responded by letter dated January 27, 2002,

stating:

Fluvanna Correctional Center’s administrative staff is
very familiar with this situation and appropriate
administrative action has been taken to address this
issue. However, if Ms. Billups is not satisfied with
this action, she is encouraged to utilize the Inmate
Grievance Procedure by filing a formal grievance with the
Institutional Grievance Coordinator. The Grievance
process must be exhausted prior to seeking legal
remedies.

In response, the plaintiff, on February 1, 2002, filed a

grievance on a form provided by the center, claiming

“compensation for [her] injuries.” The center’s grievance

coordinator returned the form to the plaintiff without taking

action on it “due to an expired filing period.” Plaintiff’s

counsel again wrote to the warden on April 12, 2002,

requesting that the coordinator’s decision regarding lack of

timeliness be appealed in accordance with VDOC’s internal

rules governing prisoner grievance procedures.2 This resulted

in a “Level I Warden’s Response” addressed to the plaintiff

and dated May 21, 2002, stating:

2
VDOC’s Inmate Grievance Procedure, as pertinent here,
specifies three levels of review, first to the warden of the
institution involved, second to the Regional Director and
finally to the Director or Deputy Director of VDOC in certain
cases. Many cases, including this one, are ineligible for the
third level of appeal. In that event, the response to the
inmate from the second level must state that this was the last
level of appeal and that all administrative remedies have been
exhausted. Virginia Department of Corrections, DOP 866:
Inmate Grievance Procedure § 866-7.15 (Nov. 20, 1988) (DOP
§ 866-7.15).

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 It is noted that you met with the Institutional
Investigator and the incident was referred to the
Department of Corrections Investigative Unit.
Conclusion of the investigation revealed that Mr.
Carter did violate the Department of Corrections
Policy 5-22 and was removed from employment.

Based on the above, this issue is deemed FOUNDED. An
appropriate administrative remedy was provided.

If you are dissatisfied with the Level I response, you may
appeal within (5) calendar days to the Regional Director
. . . .

(Emphasis in original).

The plaintiff appealed to the second level, eliciting a

response from VDOC’s regional director, dated June 18, 2002

and received by her on June 28, 2002, stating:

Your grievance appeal has been reviewed along with
the original complaint and the Level 1 response.

The decision of the Level 1 respondent is UPHELD.

When you reported the incident, it was referred to
the Investigative Unit and, at the conclusion of the
investigation, the case was referred for criminal
prosecution.

In accordance with DOP 866 governing the Inmate
Grievance Procedure, this is your last level of
appeal.

(Emphasis in original).

The trial court’s ruling sustaining the defendant’s

demurrers, pleas and motions was premised upon four underlying

conclusions: that the plaintiff had failed to demonstrate

compliance with the notice requirements of the Virginia Tort

Claims Act, that she had failed to exhaust her administrative

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remedies before filing suit, that her actions were barred by

the statute of limitations, and that she had sued VDOC rather

than the Commonwealth, the only proper party to such suits.

Analysis

A. Notice

The Commonwealth and its agencies are immune from

liability for the tortious acts or omissions of their agents

and employees in the absence of an express constitutional or

statutory waiver of sovereign immunity. The Rector and

Visitors of UVA v. Carter, 267 Va. 242, 244, 591 S.E.2d 76, 78

(2004). The General Assembly has provided an express, limited

waiver of sovereign immunity by enacting the Virginia Tort

Claims Act, Code §§ 8.01-195.1 through 195.9. This enactment,

being in derogation of the common law, is strictly construed.

Carter, 267 Va. at 245, 591 S.E.2d at 78.

Code § 8.01-195.6 provides, in pertinent part:

The claimant or his agent, attorney or
representative shall, in a claim cognizable against
the Commonwealth, mail the notice of claim via the
United States Postal Service by certified mail,
return receipt requested, addressed to the Director
of the Division of Risk Management or the Attorney
General in Richmond. . . .

In any action contesting the filing of the notice of
claim, the burden of proof shall be on the claimant
to establish mailing and receipt of the notice in
conformity with this section.

The defendants contended, and the trial court held, that

the foregoing provisions impose, as a jurisdictional

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prerequisite, a requirement that there be appended to a motion

for judgment seeking relief under the Act a copy of the

original certified mail return receipt, or an affidavit to the

effect that the notice had been sent and received as specified

by the statute. We do not agree. The statute merely places

upon the claimant the burden of proving proper mailing and

receipt of the notice of claim in cases in which its filing is

contested. The defendants here made no contention that the

plaintiff, as claimant, had in fact failed to give notice as

required, but contended only that the motions for judgment

were insufficient for failure to contain “required

documentation” to that effect. In the absence of a contest

concerning the giving of actual notice, such “documentation”

at the pleading stage was unnecessary.

B. Exhaustion of Administrative Remedies

Code § 8.01-195.3(7) provides that tort claims by

prisoners against the Commonwealth are excluded from the

operation of the Act

. . . unless the claimant verifies under oath, by
affidavit, that he has exhausted his remedies under
the adult institutional inmate grievance procedures
promulgated by the Department of Corrections. The
time for filing the notice of tort claim shall be
tolled during the pendency of the grievance
procedure.

The Federal Civil Rights Act, of which 42 U.S.C. § 1983

is a part, also prohibits suits by prisoners “until such

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administrative remedies as are available are exhausted.” 42

U.S.C. § 1997e(a). The one-year statute of limitations

applicable to the assault and battery count against Carter,

Code § 8.01-243.2, also contains a requirement that “all

available administrative remedies” be exhausted before a

prisoner may sue, and further provides that the limitation

period shall be extended until six months after such remedies

are exhausted.

The defendants contended, and the trial court held, that

the plaintiff had failed to exhaust her administrative

remedies because she had not filed her initial grievance on a

printed form prescribed by VDOC within 30 days of Carter’s

last assault upon her. VDOC’s inmate grievance procedures

provide that grievances “are to be filed within 30 calendar

days of the occurrence/incident . . . ,” DOP § 866-7.14, and

that “[i]nmates are to use the Regular Grievance Form

(Attachment 2) to file their own grievances.” Id. It is

uncontested that the plaintiff did not file such a form until

after the warden recommended, in a letter to her attorney,

that she should do so.

Nevertheless, the question presented on appeal is not

whether the plaintiff filed her grievance upon the prescribed

form within 30 days but whether she exhausted her

administrative remedies before filing suit.

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 We adhere to the rule that the principles of waiver and

estoppel do not apply to the Commonwealth and that when acting

in its governmental capacity it cannot be bound by the

unauthorized acts or representations of its employees and

agents. E.g., Ellis v. Commissioner, 206 Va. 194, 201, 142

S.E.2d 531, 536 (1965); Main v. Department of Highways, 206

Va. 143, 150, 142 S.E.2d 524, 529 (1965). The present appeal,

however, does not turn upon the intentional waiver of a known

right by the agents of the sovereign, or upon misleading

conduct by such agents giving rise to the principles of

estoppel. Rather, it turns upon whether the plaintiff, before

filing suit, had in fact exhausted such administrative

remedies as were available to her.

Within 30 days of Carter’s last assault upon her, the

plaintiff reported his conduct to the prison authorities and

cooperated in their investigation, leading to his discharge,

indictment and felony conviction. When her attorney wrote to

the warden, asking for compensation for her, the warden

replied that the center’s staff was “very familiar with this

situation” and that “appropriate action has been taken.” The

warden then “encouraged” the filing of a formal grievance

proceeding if the plaintiff was unsatisfied with the action

already taken. When that step was taken, it failed and was

appealed. The appeal resulted in a finding that the grievance

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was “founded” but that the administrative action already taken

against Carter was sufficient. That determination was then

appealed to the second and final level of appeal provided

under VDOC’s grievance procedures, resulting in an affirmance

of the finding in the first appeal. At both levels of appeal,

the grievance was found to be valid and supported by the

facts, but the requested remedy was denied. The letter to the

plaintiff conveying the final ruling on the grievance

concluded with the words: “this is your last level of appeal.”

In a different but analogous context, we recently held

that reasonable compliance with the requirements of the Act,

not perfect compliance, was sufficient to invoke its statutory

waiver of sovereign immunity. Bates v. Commonwealth, 267 Va.

387, 394-95, 593 S.E.2d 250, 254-55 (2004). There, we found a

description of the “place of injury” in the plaintiff’s notice

in a medical malpractice case sufficient where it simply named

the hospital in which the alleged malpractice had occurred,

rejecting the argument that the notice should have named the

precise building, floor and room. Id. In the circumstances

of the present case, we are unable to say that the plaintiff

failed to exhaust her administrative remedies and hold that

she took all reasonably necessary steps to do so.

C. Statute of Limitations

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 The defendants argued, and the trial court held, that the

statute of limitations applicable to § 1983 actions was one

year, as prescribed by Code § 8.01-243.2, which governs

personal actions brought by inmates of correctional

institutions relating to the conditions of their confinement.

Congress has not adopted a statute of limitations governing

actions under 42 U.S.C. § 1983. Rather, 42 U.S.C. § 1988(a)

authorizes the federal courts to borrow state limitation

periods when not inconsistent with federal law. Owens v.

Okure, 488 U.S. 235, 239 (1989). The United States Supreme

Court specifically held that “courts considering § 1983 claims

should borrow the general or residual [state] statute for

personal injury actions.” Id. at 250. Our general or

residual statute of limitations provides, in pertinent part,

that every action for personal injury, “whatever the theory of

recovery . . . shall be brought within two years after the

cause of action accrues.” Code § 8.01-243(A). We hold that

§ 1983 actions brought in Virginia courts are governed by the

two-year limitation prescribed by that section. Accordingly,

the plaintiff’s § 1983 actions were timely because they were

brought within two years after Carter’s last assault upon her.

The plaintiff’s common-law assault and battery count

against Carter is governed by the one-year limitation period

prescribed by Code § 8.01-243.2 but, as noted above, that

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section also provides for an extension of up to six months

after all administrative remedies have been exhausted.3 The

record shows that the plaintiff received notice of the final

determination of her grievance appeal on June 28, 2002 and the

time period after her exhaustion of administrative remedies

runs from that date. Her suit against Carter was instituted

on December 23, 2002, within the six month period. Thus, the

trial court erred in holding the plaintiff’s claims barred by

the statute of limitations.

D. Misnomer or Amendment to Add Party.

After this case was decided in the trial court, we held,

in Carter, 267 Va. at 245, 591 S.E.2d at 78, that the

Commonwealth was both a necessary party and a proper party to

actions brought under the Act, because the Act had the effect

of creating a limited waiver of the sovereign immunity of the

Commonwealth but not of its agencies. On January 27, 2003,

the plaintiff moved the trial court to “correct a misnomer” by

changing the name of VDOC in the caption of the suit to the

Commonwealth, or in the alternative, to add the Commonwealth

as a party defendant. The court denied the motion because the

plaintiff’s suits were to be dismissed on other grounds.

3
All counts in both motions for judgment are based upon
§ 1983 claims except for the assault and battery count against
Carter.

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 Because we conclude that the actions should not have been

so dismissed, the motion to add the Commonwealth as a party

defendant should have been granted.4 The motion to add was

made within the two-year limitation period applicable to

§ 1983 claims and there was no danger of prejudice to the

Commonwealth by reason of late notice. The Attorney General

has defended both actions from their inception and continues

to represent all parties defendant, except Carter, on appeal.

Code § 8.01-7 provides:

In any case in which full justice cannot be done, or
the whole controversy ended, without the presence of
new parties to the suit, the court, by order, may
direct the clerk to issue the proper process against
such new parties, and, upon the maturing of the case
as to them, proceed to make such orders or decrees
as would have been proper if the new parties had
been made parties at the commencement of the suit.

“Leave to amend shall be liberally granted in furtherance of

the ends of justice.” Rule 1:8. Had the trial court not

dismissed the cases on other grounds, a denial of the motion

to add the Commonwealth as a party defendant would have

constituted an abuse of discretion, given the circumstances

discussed above. See Kole v. City of Chesapeake, 247 Va. 51,

57, 439 S.E. 2d. 405, 409 (1994).

Conclusion

4
Code § 8.01-6, relating to the correction of a misnomer,
is inapplicable. It applies when the right person is wrongly
named, not where the wrong entity is named. Swann v. Marks,
252 Va. 181, 184, 476 S.E.2d 170, 172 (1996).

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 Because the trial court erred in denying the plaintiff’s

motion to add the Commonwealth as a party defendant, in

sustaining the defendants’ demurrers, pleas and motions to

dismiss, and in dismissing the actions, we will reverse the

final orders in both cases and remand them to the trial court

for further proceedings consistent with this opinion.

Reversed and remanded.

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