AlBritton v. Commonwealth

Decision Date04 February 2021
Docket NumberRecord No. 191030
Citation853 S.E.2d 512,299 Va. 392
Parties DeVinche Javon ALBRITTON v. COMMONWEALTH of Virginia
CourtVirginia Supreme Court

Daniel C. Yates (Michael W. Robinson ; Venable, on briefs), for appellant.

Zachary R. Glubiak, John Marshall Fellow (Mark R. Herring, Attorney General; Toby J. Heytens, Solicitor General; Victoria N. Pearson, Deputy Attorney General; Martine E. Cicconi, Deputy Solicitor General; Michelle S. Kallen, Deputy Solicitor General; Stacie A. Sessoms, Assistant Attorney General; Jessica Merry Samuels, Assistant Solicitor General, on brief), for appellee.

PRESENT: All the Justices


DeVinche Javon AlBritton, an inmate in a state penitentiary, sued the Commonwealth of Virginia, alleging that he was injured while falling down stairs negligently maintained by the Department of Corrections ("DOC"). For three alternative reasons, the circuit court entered summary judgment dismissing AlBritton's complaint with prejudice. Disagreeing with each of these reasons, we reverse and remand this case for further proceedings.


AlBritton's pro se complaint alleged that as an inmate in the Sussex II State Prison, he had tripped down a set of stairs that the DOC had negligently maintained. He claimed that the staircase was "damaged and missing edge pieces of concrete from a few of the steps of the staircase." J.A. at 2. A nurse treated him in the prison infirmary for pain in his "joints and ligaments" that affected his ability to ambulate. See id. His complaint included an affidavit stating that he had "exhausted the administrative remedies of the adult institutional inmate grievance procedure to the extent required and permitted by the Virginia Department of Corrections and its regulations." Id. at 4.

In response to AlBritton's complaint, the Commonwealth filed a plea in bar and a motion for summary judgment. The plea in bar asserted that the doctrine of sovereign immunity barred AlBritton's claim because he had not exhausted his administrative remedies, a precondition to filing a civil action pursuant to the Virginia Tort Claims Act, see Code § 8.01-195.3(7) ; see also Code § 8.01-243.2. The motion for summary judgment asserted that no genuine issue of material fact existed on the question of primary negligence or contributory negligence — in other words, no reasonable factfinder could conclude that the DOC had been negligent or that AlBritton had not been contributorily negligent. Agreeing with these alternative assertions, the circuit court granted the plea in bar and motion for summary judgment.


On appeal, AlBritton challenges each of the three independent grounds relied upon by the circuit court in sustaining the plea in bar and granting summary judgment. AlBritton first argues that he exhausted his administrative remedies under the Virginia Tort Claims Act, and thus, sovereign immunity does not bar his civil action. He then contends that the issues of primary and contributory negligence presented material facts genuinely in dispute, making summary judgment inappropriate. We find his arguments persuasive.


"The doctrine of sovereign immunity remains ‘alive and well in Virginia.’ " Pike v. Hagaman , 292 Va. 209, 214, 787 S.E.2d 89 (2016) (citation omitted). To the extent that some think this doctrine may be alive but unwell, we leave such policy reforms to the legislature because "[t]he General Assembly, not the courts, wholly occupies this field of law," AGCS Marine Ins. v. Arlington Cnty. , 293 Va. 469, 484 n.9, 800 S.E.2d 159 (2017). Engaged in its policy-making role, "[t]he General Assembly has employed an incremental approach by enacting a limited waiver of immunity in the Virginia Tort Claims Act." Id. As applied to state prisoners, the Act partially waives sovereign immunity for "[a]ny claim by an inmate of a state correctional facility" if the inmate "verifies under oath, by affidavit, that he has exhausted his remedies under the adult institutional inmate grievance procedures promulgated by the Department of Corrections." See Code § 8.01-195.3(7). That provision necessarily implies that if the verification were later proven to be false, it would be insufficient to trigger the statutory exception to the doctrine of sovereign immunity.

The exhaustion requirement should not be viewed as a gratuitous roadblock to prisoner litigation. As the United States Supreme Court has observed, exhaustion statutes in the prison-litigation context are intended to "reduce the quantity and improve the quality of prisoner suits." See Woodford v. Ngo , 548 U.S. 81, 93-94, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (quoting Porter v. Nussle , 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) ) (interpreting the exhaustion requirement of the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (2000) ). The exhaustion requirement "protects ‘administrative agency authority’ " and "promotes efficiency" by encouraging disputes to be resolved "quickly and economically" during the prelitigation administrative process. Woodford , 548 U.S. at 89, 126 S.Ct. 2378 (citation omitted).

In this case, the circuit court held that AlBritton had failed to exhaust his administrative remedies, and thus, Code § 8.01-195.3(7) did not provide him with a statutory exception to sovereign immunity. The court appeared to base this holding on an affidavit from the "Institutional Ombudsman" at the prison where the accident had occurred, see J.A. at 18. The prison's grievance procedure, a copy of which is attached to the affidavit, describes three levels of grievance review after the inmate submits an unsuccessful informal complaint.

First, the inmate must send his grievance for a Level I review by the "Facility Unit Head" of the prison. See id. at 20. If dissatisfied with the Level I decision, the inmate may appeal the decision to the "Regional Administrator, Health Services Director, [or] Chief of Operations of Classification and Records" of the DOC, which is a Level II review. Id. at 20; cf. id. at 32 (including also the "Superintendent for Education"). If that appeal is again unsuccessful, the inmate may appeal to the Director or Deputy Director of the DOC for a Level III review. Id. at 20. Time limits govern each level of the hierarchical appeal process. An inmate has five days from receipt of an adverse Level I decision to appeal for a Level II review and has five days from receipt of an adverse Level II decision to appeal for a Level III final review. See id. at 33.

By all accounts, AlBritton submitted a timely grievance for a Level I review. The warden issued a response on December 22, 2017, determining that the grievance was unfounded. The Institutional Ombudsman's affidavit asserts that "Albritton had 5 calendar days to appeal the Level I decision to the Regional Administrator, which he did not do. Therefore, he has not exhausted his administrative remedies" under the prison grievance procedure. Id. at 22. AlBritton's Level II grievance appeal, however, declares that it was "mailed to the Regional Admin ... on this 25th day of December 2017 by placing it in the [prison] mailing system." Id. at 63.1 On appeal, the Commonwealth argues that such mailing was insufficient because "under VDOC practice," grievance appeals are "submitted for purposes of exhaustion when they are received by VDOC, not when they are sent ," Appellee's Br. at 15 n.5 (emphases in original), and the Regional Administrator never received a Level II appeal before the expiration of the five-day deadline.2 The circuit court found this reasoning persuasive. We do not.

The grievance procedure states that "[t]he offender should be allowed 5 calendar days upon receipt of a response to appeal to the next level, if such appeal is available." J.A. at 33. A different provision adds: "Incoming grievances are to be dated/date stamped on the working day received ...." Id. at 30. The procedure also provides that "[t]he exhaustion of remedies requirement will be met only when the Regular Grievance has been accepted into the grievance process and appealed through the highest eligible level without satisfactory resolution of the issue." Id. at 28.

We believe that the most reasonable interpretation of these provisions is that an inmate may timely send a Level II grievance appeal by placing it in the prison mailing system and that by doing so, the inmate has "appeal[ed]" the grievance "to the next level," id. at 33. The Commonwealth's contrary interpretation — that the inmate can only meet the five-day deadline when the DOC date-stamps its receipt of the grievance on or before day five — exposes the inmate to a risk over which he has no control. Under this interpretation, an inmate could deposit his grievance in the prison mailing system on day one and still be forever barred from pursuing the claim further in either administrative or judicial forums if the grievance was, for whatever reason, received on day six.

Given that the prison operates the prison mailing system by employees of the prison and for the benefit of the prisoners, it is difficult to see how or why an inmate should bear the risk of a delayed delivery of his mail — something completely outside of his control. Courts have factored this practical reality into their decisions in many similar contexts. See, e.g. , Houston v. Lack , 487 U.S. 266, 275, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (reasoning that "pro se prisoners necessarily lose control over and contact with their notices of appeal ... at delivery to prison authorities, not receipt by the clerk"). See generally Barbara J. Van Arsdale, Annotation, Application of "Prisoner Mailbox Rule" by State Courts Under State Statutory and Common Law , 29 A.L.R. 6th 237 (2007).

In this case, however, we need not adopt an inflexible rule for such situations. It is enough that the grievance procedure, reasonably interpreted, leads to the conclusion that the initial grievance and all later appeals are properly submitted when the inmate timely...

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