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 
2

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. 
3

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).
4

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 
5

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 
6

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 
7

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. 
8

 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 
9

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 
10

 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 
11

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. 
12

 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). 
13

 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.