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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.
1 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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