WILLIAMS v. COMMONWEALTH (2025)

Appellant Dawn Lewis Williams was injured while in the custody of the Virginia Department of Corrections (“VDOC”). She filed an initial complaint while she was still incarcerated, seeking recovery under the Virginia Tort Claims Act (“VTCA”). After she was released from incarceration, she nonsuited her original action and filed a new complaint, also seeking recovery under the VTCA. The VTCA provides a limited waiver of the Commonwealth's sovereign immunity for a “claim by an inmate of a state correctional facility” where the “claimant verifies under oath, by affidavit, that he has exhausted his remedies” under VDOC's inmate grievance procedures. Code § 8.01-195.3(7). The circuit court sustained the Commonwealth's plea in bar, finding that the Commonwealth had not waived its sovereign immunity because Williams asserted a “claim by an inmate,” and she had not attached an affidavit stating that she had exhausted her administrative remedies. A divided three-judge panel reversed the circuit court's decision, finding that the time to assess whether a claimant is an inmate is when the complaint is filed, and Williams was no longer an inmate when she filed her second complaint. Williams v. Commonwealth, 80 Va. App. 637, 900 S.E.2d 184, mandate stayed upon grant of reh'g en banc, 81 Va. App. 27, 901 S.E.2d 485 (2024). Upon the Commonwealth's petition for a rehearing en banc, we affirm the circuit court's judgment.

I. Background

On review, we accept the facts as alleged in the pleadings as true. Commonwealth v. Muwahhid, 77 Va. App. 821, 824, 887 S.E.2d 801 (2023). So viewed, the facts are as follows.

On October 11, 2018, while incarcerated at the Fluvanna Correctional Center, Williams was scheduled to attend a medical appointment at UVA Health University Hospital. She required handicap-equipped transportation to take her to and from the appointment, but the VDOC officers told her that the handicap-equipped van was not available. The officers attempted to lift Williams into a standard transport van while she was still shackled. Due to difficulties safely loading Williams, however, the officers obtained authorization to unshackle her “so that she could assist in pulling herself safely into the van.” Once she was in the van, the officers shackled her again.

When they arrived at the hospital, an officer attempted to call for authorization to unshackle Williams while they unloaded her. Because they were running behind for Williams's appointment, however, another officer did not wait. This officer tried to pull Williams backwards out of the van without help and while Williams was still shackled. The officer lost her balance, fell, and pulled Williams down with her. As a result, Williams sustained injuries, which she alleged “required significant follow up medical attention.”

In August 2019, Williams filed, pro se, a handwritten notice of claim with the Office of the Attorney General indicating that she intended to sue VDOC for causing her injuries.¹ Subsequently, Williams retained counsel, who filed a supplemental notice on October 8, 2019.²

Williams filed her initial complaint on May 4, 2020, in Fluvanna County, while she was still incarcerated. She did not file an affidavit stating that she had exhausted her administrative remedies under VDOC's inmate grievance procedures. The Commonwealth filed a plea in bar asserting sovereign immunity. While the plea in bar was pending, Williams was released from incarceration.

After her release, and before the Fluvanna circuit court could rule on the pending plea in bar, Williams nonsuited her original action. She filed a new complaint in the Circuit Court for the City of Charlottesville. This complaint, like the original, did not include an affidavit verifying that Williams had exhausted her administrative remedies.

The Commonwealth filed another plea in bar, raising two issues. First, it asserted sovereign immunity, arguing that the VTCA did not waive the Commonwealth's sovereign immunity because Williams asserted a “claim by an inmate” under Code § 8.01-195.3(7) and she had not attached an affidavit stating she had exhausted her administrative remedies. It argued that her “release from incarceration almost three years after the date of the incident does not obviate her obligation to exhaust her administrative remedies.” Second, the Commonwealth argued that Williams's notices of claim did not meet the statutory requirements of Code § 8.01-195.6(A) because they were insufficient as to the time and place of the incident. The circuit court agreed with the Commonwealth, and it sustained the Commonwealth's plea in bar on both issues. It dismissed Williams's complaint with prejudice.

Williams appealed to this Court, arguing that the circuit court erred in finding that she was an inmate subject to the exhaustion requirement under Code § 8.01-195.3(7) because she was no longer an inmate at the time she filed her complaint in the Charlottesville circuit court. She also argued that her notices of claim, both individually and collectively, were sufficient to satisfy the requirement of Code § 8.01-195.6(A), and, in any event, they were sufficient to give the Commonwealth actual knowledge of her claim.

With one judge dissenting, a panel of this Court held that a “ ‘claim by an inmate’ under the VTCA is a complaint, or the initiation of a lawsuit, asserted by someone who is currently under the custody and control of a state correctional facility.” Williams, 80 Va. App. at 662, 900 S.E.2d 184. Thus, the panel majority found that whether a claimant must file the affidavit stating that he or she had exhausted the administrative remedies depends upon the claimant's status at the time the complaint is filed. Id. at 655, 900 S.E.2d 184. Because Williams was no longer an inmate at the time she filed her complaint, the panel majority found that Williams was not required to file the affidavit. Id. at 662, 900 S.E.2d 184. The panel also concluded that Williams's notices of claim were sufficient because precedent requires only “reasonable compliance” with the VTCA's notice provisions and Williams's notices were sufficient to “pass muster” under Code § 8.01-195.6. Id. at 668, 900 S.E.2d 184.

The dissenting judge concluded that the language of the VTCA indicated that a “claim” had to exist prior to the complaint being filed. Id. at 672-73, 900 S.E.2d 184 (AtLee, J., dissenting). Thus, the dissenting judge concluded that the “claim” is made at least by the time the claimant submits the notice of claim. Id. at 670, 900 S.E.2d 184. Additionally, the dissenting judge would not have reached the issue of whether the notices were legally sufficient because Williams did not fulfill the exhaustion requirement. Id. at 670 n.14, 900 S.E.2d 184. Therefore, the dissenting judge would have affirmed the circuit court.

We granted the Commonwealth's petition for en banc review, which alleged the panel majority had “adopt[ed] an incorrect definition of ‘claim’ to hold that the Commonwealth was not entitled to sovereign immunity” and that it erred in finding the notices of claims were legally sufficient. Williams v. Commonwealth, No. 1201-22-2 (Pet. For Reh'g en banc, May 14, 2024).

II. Analysis

A. Standard of Review

“A plea in bar asserts a single issue, which, if proved, creates a bar to a plaintiff's recovery.” Kinsey v. Va. Elec. & Power Co., 300 Va. 124, 130, 861 S.E.2d 59 (2021) (quoting Massenburg v. City of Petersburg, 298 Va. 212, 216, 836 S.E.2d 391 (2019)). “Where no evidence is taken in support of the plea, the trial court, and the appellate court upon review, must rely solely upon the pleadings in resolving the issue presented.” Robinson v. Nordquist, 297 Va. 503, 513-14, 830 S.E.2d 36 (2019) (quoting Tomlin v. McKenzie, 251 Va. 478, 480, 468 S.E.2d 882 (1996)). “The facts as stated in the pleadings by the plaintiff are taken as true for the purpose of resolving the special plea.” Gray v. Va. Sec'y of Transp., 276 Va. 93, 97, 662 S.E.2d 66 (2008) (quoting Niese v. City of Alexandria, 264 Va. 230, 233, 564 S.E.2d 127 (2002)). To the extent our review requires us to interpret the provisions of the VTCA, that is “a pure question of law[,] which we review de novo.” VACORP v. Young, 298 Va. 490, 494, 840 S.E.2d 334 (2020) (quoting Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174 (2007)).

B. The Commonwealth did not waive sovereign immunity under the VTCA because Williams did not comply with Code § 8.01-195.3(7)’s requirement to exhaust her administrative remedies.

The Supreme Court has repeatedly stated that “[t]he doctrine of sovereign immunity is ‘alive and well’ in Virginia.” Fines v. Rappahannock Area Cmty. Servs. Bd., 301 Va. 305, 313, 876 S.E.2d 917 (2022) (quoting Messina v. Burden, 228 Va. 301, 307, 321 S.E.2d 657 (1984)). Unless there is an express statutory or constitutional provision waiving sovereign immunity, “the Commonwealth and its agencies are immune from liability for the tortious acts or omissions of their agents and employees.” Muwahhid, 77 Va. App. at 829, 887 S.E.2d 801 (quoting Melanson v. Commonwealth, 261 Va. 178, 181, 539 S.E.2d 433 (2001)).

“[T]hrough the enactment of the VTCA, the General Assembly has provided an ‘express but limited waiver of the Commonwealth's immunity from tort claims.’ ” Phelan v. Commonwealth, 291 Va. 192, 195, 781 S.E.2d 567 (2016) (quoting Melanson, 261 Va. at 181, 539 S.E.2d 433). The VTCA waives the Commonwealth's “sovereign immunity for tort claims in the circumstances to which the statute applies, but the waiver is a limited one and the VTCA, being an enactment in derogation of the common law, is strictly construed.” Canter v. Commonwealth, 82 Va. App. 593, 602, 908 S.E.2d 142 (2024) (quoting Doud v. Commonwealth, 282 Va. 317, 321, 717 S.E.2d 124 (2011)). Thus, any “waiver ‘will not be implied from general statutory language but must be explicitly and expressly stated in the statute.’ ” Muwahhid, 77 Va. App. at 829, 887 S.E.2d 801 (quoting All. to Save the Mattaponi v. Commonwealth Dep't of Env't Quality ex rel. State Water Control Bd., 270 Va. 423, 455, 621 S.E.2d 78 (2005)). In interpreting the VTCA, we cannot “ ‘place any limitation on the clear and comprehensive language of the statute, or ․ create an exception where none exists under the guise of statutory construction,’ as to do so ‘would be to defeat the purpose of the enactment and to engage in judicial legislation.’ ” Canter, 82 Va. App. at 602, 908 S.E.2d 142 (alteration in original) (quoting Phelan, 291 Va. at 195, 781 S.E.2d 567).

The VTCA waives the Commonwealth's immunity for claims of money “on account of damage to or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee while acting within the scope of his employment.” Code § 8.01-195.3. But it excludes recovery for “claim[s] by an inmate of a state correctional facility, as defined in § 53.1-1, 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.” Code § 8.01-195.3(7). Thus, “[a]s applied to state prisoners, the [VTCA] partially waives sovereign immunity” for those inmates that comply with the exhaustion requirements, but it does not waive sovereign immunity for claims by inmates that do not comply with this requirement.³ AlBritton v. Commonwealth, 299 Va. 392, 399, 853 S.E.2d 512 (2021); see also Canter, 82 Va. App. at 602, 908 S.E.2d 142 (“The VTCA also enumerates several exceptions to the waiver of sovereign immunity and where an exception applies, the Commonwealth retains its sovereign immunity from tort claims.”).

The question before the en banc Court is whether Code § 8.01-195.3(7) required Williams to file an affidavit stating that she had exhausted her administrative remedies.⁴ Williams argues that she was no longer an inmate at the time she filed her complaint in the Charlottesville circuit court, and, therefore, she was not subject to the VTCA's exhaustion requirement for “claims by an inmate.” The Commonwealth, however, argues that “claim” refers to the “set of facts giving rise to a potential right to relief,” which makes the relevant time to evaluate the claimant's status the time of injury. Because Williams was an inmate when she was injured, the Commonwealth contends that she was required to exhaust her administrative remedies and file an affidavit certifying that she did so to fit within the statutory waiver of the Commonwealth's sovereign immunity. Thus, we are tasked with interpreting “claim by an inmate” and determining at what point we evaluate the claimant's status in assessing the Commonwealth's sovereign immunity defense.

To answer this question, we look to the text and context of the VTCA. “When construing a statute, our primary objective is to ascertain and give effect to the legislative intent, which ‘is initially found in the words of the statute itself.’ ” Chaffins v. Atl. Coast Pipeline, LLC, 293 Va. 564, 568, 801 S.E.2d 189 (2017) (quoting Crown Cent. Petroleum Corp. v. Hill, 254 Va. 88, 91, 488 S.E.2d 345 (1997)). We interpret the words in the context of the entire statute because “it is our duty to interpret the several parts of a statute as a consistent and harmonious whole so as to effectuate the legislative goal.” Id. (quoting Eberhardt v. Fairfax Cnty. Emps.’ Ret. Sys. Bd. of Trs., 283 Va. 190, 194-95, 721 S.E.2d 524 (2012)). “[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, or strained construction.” Chenevert v. Commonwealth, 72 Va. App. 47, 56, 840 S.E.2d 590 (2020) (alteration in original) (quoting Williams v. Commonwealth, 57 Va. App. 341, 351, 702 S.E.2d 260 (2010)). “In applying these principles, we also consider ‘the evil sought to be corrected by the legislature’ when it adopted the pertinent language.” Geico Advantage Ins. Co. v. Miles, 301 Va. 448, 455, 879 S.E.2d 908 (2022) (quoting Southern Ry. Co. v. Commonwealth, 205 Va. 114, 117, 135 S.E.2d 160 (1964)).

1. The plain language of the statute supports finding that the operative time to evaluate the claimant's status is at the time of injury.

“[S]tatutory interpretation must begin with the text itself to determine the intent of the legislature.” Davenport v. Utility Trailer Mfg. Co., 74 Va. App. 181, 196, 867 S.E.2d 484 (2022). “When, as here, a statute contains no express definition of a term, the general rule of statutory construction is to infer the legislature's intent from the plain meaning of the language used.” Matzuk v. Price, 70 Va. App. 474, 483, 828 S.E.2d 252 (2019) (quoting Jones v. Commonwealth ex rel. Moll, 295 Va. 497, 504, 814 S.E.2d 192 (2018)); see also Dietz v. Commonwealth, 294 Va. 123, 133, 804 S.E.2d 309 (2017) (applying the “ordinary and plain meaning” of words not defined in a statute (quoting Hilton v. Commonwealth, 293 Va. 293, 299, 797 S.E.2d 781 (2017))). To find the ordinary and plain meaning of a word, “courts can look to dictionary definitions,” Davenport, 74 Va. App. at 196, 867 S.E.2d 484, or “pertinent analysis in prior case[s],” Eley v. Commonwealth, 70 Va. App. 158, 165, 826 S.E.2d 321 (2019). In finding the plain meaning of a word, we will not “isolate particular words or phrases”; instead, we examine “a statute in its entirety.” Ducharme v. Commonwealth, 70 Va. App. 668, 677, 830 S.E.2d 924 (2019) (quoting Colbert v. Commonwealth, 47 Va. App. 390, 395, 624 S.E.2d 108 (2006)).

“Claim” can mean different things depending on the context in which it is used. For example, claim can be defined as “[a] demand for money, property, or a legal remedy to which one asserts a right; esp., the part of a complaint in a civil action specifying what relief the plaintiff asks for.” Claim, Black's Law Dictionary (12th ed. 2024). But it has also been defined as the set of “operative facts giving rise to a right.” Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 527 (4th Cir. 2014) (quoting Claim, Black's Law Dictionary (9th ed. 2009)). At the time the General Assembly enacted the exhaustion provision of the VTCA, Black's Law Dictionary included both definitions, defining claim as “[c]ause of action,” a “[r]ight to payment, whether or not such right is reduced to judgment,” or a “demand for money or property.” Claim, Black's Law Dictionary (5th ed. 1979). It defined “cause of action” as a “state of facts which would entitle [a] party to sustain action and give him [the] right to seek a judicial remedy.” Cause of Action, Black's Law Dictionary (5th ed. 1979). We find that the Commonwealth's definition, which equates a claim with the accrual of a cause of action, is more consistent with the text and context of the VTCA.

This interpretation is consistent with how the VTCA uses “claim” in other provisions. Code § 8.01-195.3 provides that “the Commonwealth shall be liable for claims for money only accruing on or after” a particular date. A complaint does not “accrue,” but a cause of action does. Lucas v. Woody, 287 Va. 354, 359, 362, 756 S.E.2d 447 (2014). Thus, this provision shows that the VTCA used claim synonymously with cause of action or the set of facts allegedly giving rise to the right to recover. Furthermore, the General Assembly used claim this way in Code § 8.01-195.3, which is the same code section that contains “claims by an inmate,” which we are tasked with interpreting.⁵

Likewise, Code § 8.01-195.6 uses claim to refer to the underlying facts giving rise to a cause of action. It requires a claimant to “file[ ] a written statement of the nature of the claim, which includes the time and place the injury is alleged to have occurred ․, within one year after such cause of action accrued.” Code § 8.01-195.6(A). By using “such cause of action” to refer back to the “claim,” the General Assembly indicated an intent to use the two terms as synonymous. See Joyce v. Commonwealth, 82 Va. App. 519, 527, 907 S.E.2d 552 (2024) (noting that “ ‘such’ means ‘[t]hat or those; having just been mentioned’ ” and “must refer to something that has already been mentioned” (alteration in original) (quoting Such, Black's Law Dictionary (11th ed. 2019))). Moreover, the notice must include a “written statement of the nature of the claim, which includes the time and place at which the injury is alleged to have occurred.” Code § 8.01-195.6(A). In asking for a description of the “nature of the claim,” this provision specifically asks for a description of the operative facts giving rise to the right. “[I]t is a common canon of statutory construction that when the legislature uses the same term in separate statutes, that term has the same meaning in each unless the General Assembly indicates to the contrary.” Gerald v. Commonwealth, 68 Va. App. 167, 174, 805 S.E.2d 407 (2017) (quoting Barson v. Commonwealth, 284 Va. 67, 74, 726 S.E.2d 292 (2012)). Thus, “claim” is best defined as the “operative facts giving rise to a right” because the General Assembly used it in that manner in other provisions.

2. Other provisions of the VTCA support finding that the operative time to evaluate the claimant's status is when the cause of action accrues.

Beyond the plain meaning of the word “claim,” the context of the VTCA, and the general process for pursuing a claim under the VTCA, support our interpretation of Code § 8.01-195.3(7). See Geico Advantage, 301 Va. at 455, 879 S.E.2d 908 (“[W]ords in a statute are to be construed according to their ordinary meaning, given the context in which they are used.” (alteration in original) (quoting City of Va. Beach v. Bd. of Supervisors, 246 Va. 233, 236, 435 S.E.2d 382 (1993))). The general process for pursuing a claim against the Commonwealth, and the way “claim” is used elsewhere in the VTCA, indicates that a claim exists well before a complaint is filed.

Code § 8.01-195.6, aptly titled “Notice of Claim,” requires a claimant to file a notice of claim. A notice of claim is “a written statement of the nature of the claim, which includes the time and place at which the injury is alleged to have occurred and the agency or agencies alleged to be liable ․” Code § 8.01-195.6(A). The purpose of the notice requirement is to “provide notice to the Commonwealth of a facially cognizable claim so that the Commonwealth is in a position to investigate and evaluate that claim.” Bates v. Commonwealth, 267 Va. 387, 394, 593 S.E.2d 250 (2004) (emphasis added). Once it has investigated the claim, the Commonwealth can then determine whether it wants to attempt to settle the claim before litigation or deny the claim. Code § 8.01-195.5. This is often called the claim stage of litigation. For the Commonwealth to investigate and make a decision about the claim, logically, a claim must already exist.

Even the statutory language setting out the authority of the Attorney General and the Director of the Division of Risk Management to settle a claim supports this interpretation. While the Attorney General has the authority to settle a claim at any point, the Director of the Division of Risk Management may only “adjust, compromise and settle claims against the Commonwealth cognizable under this article prior to the commencement of suit unless otherwise directed by the Attorney General.” Code § 8.01-195.5 (emphasis added). That the Director of the Division of Risk Management can only settle a claim prior to the “commencement of suit,” i.e., the filing of a complaint, necessarily means that a claim exists before that point.

Further, Code § 8.01-195.7 establishes that a claimant may only proceed with a lawsuit (1) “upon denial of the claim by the Attorney General or the Director of the Division of Risk Management” or (2) “after the expiration of six months from the date of filing the notice of claim unless, within that period, the claim has been compromised and discharged pursuant to § 8.01-195.5.” This language again indicates that the “claim” exists before the complaint is filed. Finding that a “claim by an inmate” is not made until the complaint is filed directly contradicts the way claim is used in these provisions. See Eberhardt, 283 Va. at 195, 721 S.E.2d 524 (“[W]hen a term is used in different sections of a statute, we give it the same meaning in each instance unless there is a clear indication the General Assembly intended a different meaning.”).

Finally, in other provisions of the VTCA, the General Assembly has demonstrated that it can, if it chooses, specifically place the temporal focus on proceedings in court. For example, in Code § 8.01-195.7, the VTCA provides that an “action,” which is initiated by filing a complaint, “may be commenced ․ upon denial of the claim by the Attorney General or the Director of the Division of Risk Management.” See also Code § 8.01-195.5 (The Director of the Division of Risk Management has authority to “settle claims against the Commonwealth ․ prior to the commencement of suit.”). In these provisions, the General Assembly used the terms “action” and “suit,” which specifically place the focus on court proceedings. It did not use similar language when drafting the exclusion in Code § 8.01-195.3(7). We assume that the “General Assembly chose, with care, the words it used in enacting the statute.” PKO Ventures, LLC v. Norfolk Redevelopment & Hous. Auth., 286 Va. 174, 183, 747 S.E.2d 826 (2013) (quoting Kiser v. A.W. Chesterton Co., 285 Va. 12, 19 n.2, 736 S.E.2d 910 (2013)). The switch between “claim” and “suit” or “action” demonstrates that the General Assembly intended them to mean different things.⁶ Thus, the context of the VTCA, and the general process for pursuing a claim under the VTCA, indicates that the claim must exist before the complaint is filed.

To interpret “claim” as referring to the filing of the complaint, as Williams asks us to, would require either giving “claim” different meanings in different provisions of the VTCA (and in Code § 8.01-195.3 itself) or reading certain provisions out of the VTCA entirely.⁷ Both of which are inconsistent with our canons of statutory interpretation. See Eberhardt, 283 Va. at 195, 721 S.E.2d 524 (“[W]hen a term is used in different sections of a statute, we give it the same meaning in each instance unless there is a clear indication the General Assembly intended a different meaning.”); Spratley v. Commonwealth, 298 Va. 187, 195, 836 S.E.2d 385 (2019) (“discourag[ing] any interpretation of a statute that would render any part of it useless, redundant or absurd” and instead “seek[ing] to read statutory language so as to give effect to every word” (quoting Owens v. DRS Auto. FantomWorks, Inc., 288 Va. 489, 497, 764 S.E.2d 256 (2014))).

A claim cannot be described, investigated, and settled or denied unless that claim already exists. The VTCA provides that all of this happens prior to a complaint ever being filed. Though the VTCA is not a model of clarity, these provisions do clearly demonstrate that a claim must exist well before a complaint is ever filed. Interpreting “claim” to refer to the “operative facts giving rise to a right,” or synonymous with cause of action, is consistent with how “claim” is used in other provisions of the VTCA and is the proper way to interpret the statute to give effect to all provisions of the VTCA.

Any issues or inconsistencies in the VTCA would need to be fixed by the General Assembly. Until then, we are left with the requirement that we strictly construe the VTCA and any waiver of sovereign immunity. Doud, 282 Va. at 320, 717 S.E.2d 124 (“In the VTCA, the Commonwealth has waived its sovereign immunity for tort claims in the circumstances to which the statute applies, but the waiver is a limited one and the VTCA, being an enactment in derogation of the common law, is strictly construed.”). We cannot “create an exception where none exists under the guise of statutory construction,’ as to do so ‘would be to defeat the purpose of the enactment and to engage in judicial legislation.’ ” Canter, 82 Va. App. at 602, 908 S.E.2d 142 (quoting Phelan, 291 Va. at 195, 781 S.E.2d 567).

There is nothing in the plain language of Code § 8.01-195.3(7), or the other provisions of the VTCA, that indicates an explicitly and expressly stated intent to waive sovereign immunity for inmate claims where the inmate has not exhausted his or her administrative remedies.⁸ See Muwahhid, 77 Va. App. at 829, 887 S.E.2d 801 (A “waiver will not be implied from general statutory language but must be explicitly and expressly stated in the statute.” (quoting All. to Save the Mattaponi, 270 Va. at 455, 621 S.E.2d 78)). The plain language of Code § 8.01-195.3(7), and the context of the VTCA process, make clear that the General Assembly intended to waive the Commonwealth's sovereign immunity for inmate claims only where the inmate has exhausted his or her administrative remedies.

3. Interpreting “claim” to refer to the time the complaint is filed would undermine the purpose of the exhaustion requirement.

“The exhaustion requirement ‘protects “administrative agency authority’ ” and ‘promotes efficiency’ by encouraging disputes to be resolved ‘quickly and economically’ during the prelitigation administrative process.” AlBritton, 299 Va. at 399-400, 853 S.E.2d 512 (quoting Woodford v. Ngo, 548 U.S. 81, 89, 126 S.Ct. 2378, 2385, 165 L.Ed.2d 368 (2006)).⁹ It is not intended to be a “gratuitous roadblock to prisoner litigation.” Id. at 399, 853 S.E.2d 512. Instead, “exhaustion statutes in the prison-litigation context are intended to ‘reduce the quantity and improve the quality of prisoner suits.’ ” Id. (quoting Woodford, 548 U.S. at 93-94, 126 S.Ct. at 2387). Thus, an interpretation of this provision which allows inmates to simply wait until they are released from incarceration to avoid the exhaustion requirement is inconsistent with the intent of the exhaustion provision. See Geico Advantage, 301 Va. at 455, 879 S.E.2d 908 (“In applying these principles, we also consider ‘the evil sought to be corrected by the legislature’ when it adopted the pertinent language.” (quoting Southern Ry. Co., 205 Va. at 117, 135 S.E.2d 160)).

In Lucas v. Woody, 287 Va. 354, 756 S.E.2d 447 (2014), the Supreme Court considered the applicability of the statute of limitations period in Code § 8.01-243.2, which provides, “[n]o person confined in a state or local correctional facility shall bring or have brought on his behalf any personal action relating to the conditions of his confinement until all available administrative remedies are exhausted.” The plaintiff argued that the statute of limitations did not apply because she was no longer “confined” at the time she filed her complaint. Lucas, 287 Va. at 360, 756 S.E.2d 447. The Supreme Court noted that having “the applicability of a statute of limitations change based upon the confinement status of the plaintiff at the time a lawsuit is filed, rather than the particular cause of action asserted and the plaintiff's status at the time the action accrued would be anomalous.”¹⁰ Id. at 362, 756 S.E.2d 447. Such an interpretation would result in “two different and shifting statutes of limitations for the same cause of action.” Id. Further, it would cause uncertainty because an action could be revived by a change in the plaintiff's confinement status. Id. Thus, the Court found that the statute of limitations applied to all actions relating to the conditions of incarceration, regardless of whether the plaintiff was still incarcerated when the action was filed. Id. at 363, 756 S.E.2d 447.

Though Lucas concerned a different statute, the same reasoning applies here. Interpreting the statute as Williams asks us to would result in two different requirements depending on the confinement status of the inmate at the time a complaint is filed. Those who are still incarcerated would be subject to an exhaustion requirement. Those who are no longer incarcerated would not be subject to an exhaustion requirement—even if they had time and opportunity to exhaust those remedies. Further, as in Lucas, a claim could be revived, as it was here, by a change in the plaintiff's confinement status. There is no obvious rationale why such an interpretation would further the legislative intent of an exhaustion requirement. Indeed, such an interpretation is, as mentioned above, in direct conflict with the purpose of an exhaustion requirement.

III. Conclusion

We find that the plain language of Code § 8.01-195.3(7) requires us to evaluate the claimant's status at the time of injury. Because Williams was still incarcerated at the time of injury, and she had the opportunity to exhaust her administrative remedies, she was required to do so. Since she did not do so, she does not fall within the limited waiver of sovereign immunity. Accordingly, the decision of the circuit court is affirmed.

Affirmed.

I concur with the majority's decision to affirm the circuit court below. However, in reviewing the record, I am compelled to conclude that Williams's claim fails on a different and more narrow ground, namely that her statutorily required VTCA notice of claim, initially filed pro se and secondly and subsequently filed by her counsel, named separate and different locations for her injuries. Since the first notice of claim designated the location of her injury as occurring while being transported to the UVA Hospital in Charlottesville and the second and subsequent notice of claim designated the Fluvanna Correctional Center as the location of her injury, she failed to comply with the VCTA notice requirement thus barring her claim. Regardless of whether Williams filed a “claim by an inmate” at the time her subsequent nonsuit was refiled in the Charlottesville circuit court, her conflicting notices failed to comply with the notice requirements of the VTCA. Thus by deciding the case on this best and narrower ground, both the majority and the dissent could have avoided much of their opinions asserting whether and to what extent the statutory phrase “claim by an inmate” applied to the factual scenario here. So consistent with principles of judicial restraint, I would have affirmed the trial court on this best and narrower ground alone.

Under the VTCA, a plaintiff must comply with the notice requirement, which states that:

Every claim cognizable against the Commonwealth or a transportation district shall be forever barred unless the claimant or his agent, attorney or representative has filed a written statement of the nature of the claim, which includes the time and place at which the injury is alleged to have occurred and the agency or agencies alleged to be liable, within one year after such cause of action accrued.

Code § 8.01-195.6(A) (emphasis added). “The purpose of the [VTCA] statute is to enable [the Commonwealth] to make prompt investigation of tort claims, to correct dangerous or defective conditions, and, where justified, to avoid the expense and delay of litigation by making voluntary settlements with claimants.” Town of Crewe v. Marler, 228 Va. 109, 112, 319 S.E.2d 748 (1984) (quoting Heller v. City of Va. Beach, 213 Va. 683, 685, 194 S.E.2d 696 (1973)). “[T]he VTCA, being an enactment in derogation of the common law, is strictly construed.” Canter v. Commonwealth, 82 Va. App. 593, 602, 908 S.E.2d 142 (2024). And for that reason, “strict compliance with all of its provisions is required.” Phelan v. Commonwealth, 291 Va. 192, 197, 781 S.E.2d 567 (2016) (quoting Halberstam v. Commonwealth, 251 Va. 248, 251, 467 S.E.2d 783 (1996)); Halberstam, 251 Va. at 252, 467 S.E.2d 783 (noting that compliance with even “the arbitrary and peremptory provisions of the statute are necessary to accomplish the purposes of the enactment”). In addition, although we liberally construe the notice requirement “and a substantial compliance with it is sufficient,” Bowles v. City of Richmond, 147 Va. 720, 727, 129 S.E. 489 (1925), aff'd on rehearing, 147 Va. 720, 729, 133 S.E. 593 (1926), we may not through construction superimpose compliance where the language of the notice as written is deficient in the fact record, “even where ․ information [showing compliance outside of the notice] is easily inferred from the notice of claim,” Phelan, 291 Va. at 197, 781 S.E.2d 567 (holding that the claimant's failure to “explicitly include the identity of the agency or agencies alleged to be liable” caused her notice to be deficient under the VTCA even though the agency in question could be inferred from her allegations).

To comply with the VTCA, the notice must “reasonably identify the location where the injury occurred with sufficient specificity such ‘that the Commonwealth is in the position to investigate and evaluate [the] claim.’ ” Id. at 196, 781 S.E.2d 567 (quoting Bates v. Commonwealth, 267 Va. 387, 394, 593 S.E.2d 250 (2004)). “The concept of reasonableness does not lend itself to a bright-line test or dictate separate and distinct tests based on the nature of the asserted claim. Rather, its proper analysis and application is directed to the specific allegations of a notice of claim in a particular case.” Bates, 267 Va. at 394, 593 S.E.2d 250.

Here, Williams sent the Attorney General two separate and distinct notices. The first, sent pro se, stated that Williams was injured on “Oct. 10, 2018” and the injuries occurred “during transportation to UVA Hosp. by Corrections Officers at Fluvanna Corr. Center.” The second, sent by counsel, stated that the injury occurred “on or about October 10, 2018” at “Fluvanna Correctional Center.”¹¹ When “directed to the specific allegations of a notice of claim in [this] particular case,” the need for consistency regarding location is not mere formulaic adherence to the statute, but is critical to allow the Commonwealth to “investigate and evaluate” the claim alleged. Bates, 267 Va. at 394, 593 S.E.2d 250; see Halberstam, 251 Va. at 251, 467 S.E.2d 783 (dismissing plaintiff's claims when the injury was alleged to have occurred in “the school parking lot” but where the parties stipulated that the school had multiple parking lots and more than one campus). This is of particular significance since the record on appeal includes Williams's medical records from October 11, 2018, at Fluvanna Correctional Center, which notes that Williams fell and had “superficial abrasions” when she “return[ed] from transportation.” When viewing both notices together, the Commonwealth could not reasonably be expected to know which location or date Williams's claim referred to, depriving it of awareness of “the essential facts of [her] claim.”¹² Rector & Visitors of the Univ. of Va. v. Carter, 267 Va. 242, 245, 591 S.E.2d 76 (2004).

The conflict with the notices is compounded when compared against the procedural history of this case. This matter was initially filed in Fluvanna circuit court, nonsuited, and then inexplicably refiled in the Charlottesville circuit court without seeking leave from the Fluvanna circuit court to transfer the previously nonsuited matter to a different jurisdiction. It is reasonable to infer from the record that once Williams retained legal counsel who further investigated the matter, her counsel determined that the proper jurisdiction and venue for the matter was most probably the Charlottesville circuit court. This occurred despite Williams asserting in the second and “further notice” to the Attorney General that Williams's injuries occurred at Fluvanna Correctional Center.  ¹³ The notice provisions serve the purpose of allowing the Commonwealth to “reasonably identify where the injury occurred,” Phelan, 291 Va. at 196, 781 S.E.2d 567, and to allow the Commonwealth to “correct dangerous or defective conditions,” Marler, 228 Va. at 112, 319 S.E.2d 748. Williams's separate notices reasonably prevented the Commonwealth from determining where and when the injury occurred. Accordingly, I would have affirmed the circuit court's decision on this better and narrower ground.¹⁴

A “book” starts with an idea, then appears as an outline, before it takes shape as a first draft, and ultimately becomes a published copy. At each stage along the way, it is the same book, but it could also be described in other ways: an idea, outline, rough draft, or final copy. If you wrote to a friend about your new “book,” the context would reveal whether you were talking about something that was only in your head, or something available for purchase. In either case, whether published or in outline form, it would be natural to refer to it as your “book.” A “claim” is similar. Under the Virginia Tort Claims Act, a claim also exists at different stages: when it accrues, when notice of its existence is given to the Commonwealth, and when the claim is asserted in litigation by filing a complaint. At each stage along the way, there is a “claim,” and the surrounding context reveals whether the statute is talking about when that claim first accrued, or when it is asserted in litigation.

The majority opinion starts by defining “claim” in the abstract, then looking to every portion of the VTCA but the one before us, Code § 8.01-195.3(7), to articulate a general working definition for “claim.” The majority's big conclusion is that, under the VTCA, a claim “must exist before the complaint is filed.” Of course this is correct—one must possess a legal right to seek a legal remedy before filing the complaint. But it is beside the point when a claim first exists; our inquiry is which “claim[s] by an inmate” are excluded from the statute's otherwise broad waiver of sovereign immunity for “claims for money.” The text of Code § 8.01-195.3 makes clear that “claim by an inmate” refers to the temporal point when an inmate makes a demand for damages by filing a complaint with an affidavit attesting to the exhaustion of remedies. Accordingly, the exhaustion requirement attaches only for those claimants who are incarcerated when a complaint is filed. For this reason, I respectfully dissent.

A. The text and context of “claim by an inmate” in Code § 8.01-195.3(7) show that this section focuses on when litigation formally begins through the filing of a complaint.

There are three reasons why I conclude that the exhaustion requirement in Code § 8.01-195.3(7) is triggered based on whether a claimant is incarcerated when filing a complaint. First, this interpretation is the only one that acknowledges the plain text. It gives meaning to the phrase, “claim by an inmate,” which refers to when a demand or request is being asserted and not when a set of “facts” that “give[ ] rise to a right” took place. And it makes sense of the exhaustion requirement, which is met when a claimant files an affidavit along with the complaint. Second, the word “claim” has different meanings based on its context and is used in other parts of the VTCA to mean the filing of a complaint. Third, the context of Code § 8.01-195.3 is claims asserted in litigation. After addressing these points, I turn to the flaws in the majority's reasoning and explain why its interpretation is against the plain meaning of subsection (7) and Code § 8.01-195.3.

1. The plain text of subsection (7) focuses on the assertion of claims in litigation.

The VTCA waives the Commonwealth's immunity for “claims for money ․ of damage to or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee while acting within the scope of his employment.” Code § 8.01-195.3. The statute excludes from its waiver of “liab[ility] for claims for money,” “any recovery” based on several types of claims. The relevant subsection, Code § 8.01-195.3(7), describes one exclusion: “[a]ny claim by an inmate of a state correctional facility ․ unless the claimant verifies under oath, by affidavit, that he has exhausted his remedies ․” (Emphasis added). That is, the Commonwealth is not liable for “recovery” based on a “claim by an inmate” where the inmate has not fulfilled certain exhaustion requirements. The Commonwealth may be liable, however, for a “claim by an inmate” where the inmate has verified under oath that she has exhausted her remedies.

We should start with the language “claim by an inmate” within the context of Code § 8.01-195.3(7). Everyone agrees that an inmate is someone presently incarcerated. The preposition “by” conveys movement “through” something or someone. That is, the claim must be “asserted by,” “authored by,” “filed by,” or “brought by” an inmate. The vehicle “by” which one formally brings a claim, authors a claim, or asserts a claim, is the complaint. In plain speech, a “state of facts” or the occurrence of a particular injury, cannot be made “by” someone. Instead, the complaint is the demand for relief that is filed “by” the inmate along with the affidavit verifying that the inmate has exhausted her administrative remedies. This interpretation adheres to our Supreme Court's prior discussion of this portion of the VTCA: “Subparagraph (7) of [Code § 8.01-195.3] refers specifically to ‘any claim’ filed by inmates, and requires the inmate to first exhaust administrative remedies.” Ogunde v. Commonwealth, 271 Va. 639, 644, 628 S.E.2d 370 (2006) (emphasis added).

Subsection (7) then provides that in circumstances where an inmate-claimant “verifies under oath, by affidavit” that she has exhausted her remedies under VDOC grievance procedures, monetary recovery is available. The affidavit, like a complaint, is a legal device “filed by” or “asserted by” a claimant during litigation. Indeed, the affidavit's purpose is to “verify” that the inmate-claimant has taken the actions necessary to waive immunity and initiate the lawsuit, suggesting that the affidavit must accompany the complaint. See AlBritton v. Commonwealth, 299 Va. 392, 398, 853 S.E.2d 512 (2021) (“[The inmate's] complaint included an affidavit stating that he had ‘exhausted the administrative remedies of the adult institutional inmate grievance procedure to the extent required.’ ”).¹⁵ The “claimant” must file the affidavit affirming the exhaustion of remedies—and who is the “claimant” but the “inmate” asserting the claim? Here, the language and context affix the temporal focus of “claim by an inmate” to the time the “claimant” files the complaint with an affidavit.

2. Other portions of the VTCA affirm that a claim exists in multiple stages and refer to claims asserted during the complaint stage.

Recognizing that a claim exists in different stages, and that context is necessary to understand which stage is being discussed, does not “read [other] provisions out of the VTCA entirely,” as the majority suggests. Rather, it gives effect to the words used based on the plain text and context of each part of the VTCA, and merely acknowledges that a “claim” exists in one form before the “claim” is asserted through a legal complaint at a later point. Some words are like a “chameleon” in that they “ha[ve] many dictionary definitions and must draw [their] meaning from [their] context.” Pereira v. Sessions, 585 U.S. 198, 215, 138 S.Ct. 2105, 2117–18, 201 L.Ed.2d 433 (2018) (quoting Kucana v. Holder, 558 U.S. 233, 245, 130 S.Ct. 827, 835–36, 175 L.Ed.2d 694 (2010)). For example, the United States Supreme Court has recognized that the word “employees” as used in Title VII of the Civil Rights Act of 1964 “may have a plain meaning in the context of a particular section” and that this does not mean it “has the same meaning in all other sections [of the statute] and all other contexts.” Robinson v. Shell Oil Co., 519 U.S. 337, 343, 117 S.Ct. 843, 847, 136 L.Ed.2d 808 (1997). “[E]ach section must be analyzed to determine whether the context gives the term a further meaning that would resolve the issue in dispute.” Id. at 343-44, 117 S.Ct. at 847–48.

For a claim to survive the Commonwealth's sovereign immunity defense, the VTCA requires a series of events to occur in a particular order: a cause of action accrues, a notice of claim is filed, and then a claim is asserted in court. For example, Code § 8.01-195.6 bars “claims” unless the claimant “has filed” a notice of the claim “within one year after such cause of action accrued,” and Code § 8.01-195.7 states that “[a]ll claims against the Commonwealth ․ shall be forever barred unless such action is commenced within 18 months of the filing of the notice of claim, or within two years after the cause of action accrues.” (Emphases added). The suggestion that the VTCA's use of the word “claim” only refers to when the “cause of action accrues” ignores the General Assembly's choice to differentiate “claim” from the accrual of a cause of action.

These same provisions also show that the General Assembly used “claim” in some sections of the VTCA to refer to the litigation stage of a claim, and not when the claim first arose. In the VTCA's statute of limitations provisions, a “claim” is forever barred unless the claimant had given a prior notice of claim. Code § 8.01-195.7. The notice of claim must be timely made after the cause of action accrues. Code § 8.01-195.6. That is, claims in the future, at the litigation stage, will be barred unless, in the past, a prior notice of claim has been timely made, and notice of claim must succeed the accrual of the cause of action. Furthermore, in stating that “[a]ll claims against the Commonwealth ․ shall be forever barred unless such action is commenced” within a certain time period, Code § 8.01-195.7 directly equates “such action,” or lawsuit, with the “claim.” Code § 8.01-195.7 (emphases added). Accounting for the meaning and context of these sections requires us to find that “claim” is not always used as a synonym to the accrual of the cause of action, but may refer to the assertion of a demand for a remedy in the litigation stage.

These provisions are not the only places where the VTCA uses “claim” in a context that makes clear that it refers to the time a complaint is filed. For example, the “amount of the claim” determines which court has jurisdiction over a plaintiff's claim. General district courts have “exclusive original jurisdiction to hear, determine, and render judgment on any claim against the Commonwealth ․ when the amount of the claim does not exceed $4,500.” Code § 8.01-195.4. When the “amount of [a] claim” increases, circuit courts obtain concurrent or exclusive jurisdiction to hear the claim. Id. Determining a court's jurisdiction, like determining whether the Commonwealth is immune from suit, is relevant when a person initiates litigation. Here, the “amount of the claim” and “claims against the Commonwealth” are evaluated at the time the complaint is filed, because it is the claim, asserted through the complaint, that contains the monetary demand that triggers either the jurisdiction of the general district court or the circuit court. Here too, it is true that the claim exists before the jurisdiction question arose, but it is also true that the statute uses the word “claim” to refer to a specific demand for recovery asserted in court.

3. Code § 8.01-195.3 focuses on when claims are brought in litigation.

The plain text of the rest of Code § 8.01-195.3 confirms that a “claim by an inmate” must be a “demand for money” asserted at the initial stage of litigation, i.e., the filing of the complaint. As noted above, Code § 8.01-195.3 governs when the Commonwealth is “liable for claims for money” and outlines situations where “recovery” is nevertheless “excluded.” A defense of sovereign immunity is relevant in court: “[A]s a general rule, the sovereign is immune not only from actions at law for damages but also from suits in equity to restrain the government from acting or to compel it to act.” Hinchey v. Ogden, 226 Va. 234, 239, 307 S.E.2d 891 (1983). In other words, in allowing the Commonwealth to be liable for “claims for money,” this provision of the VTCA waives immunity in lawsuits seeking damages. That the Commonwealth is not immune from suit for this type of recovery also communicates that the waiver of immunity in Code § 8.01-195.3 is relevant to claims asserted in litigation. “Recovery” on a claim occurs in court. See Recovery, Black's Law Dictionary (12th ed. 2024) (“[T]he obtaining, by [formal] judgment, of some right ․ which has been taken or withheld[.]”). There is no other place where the Commonwealth would be “liable,” or where “recovery” would take place. Before this point, it is true that the Commonwealth could settle a claim, but it could do so whether the requirements of the VTCA were complied with or not. Furthermore, such a settlement would not admit liability, or be a “recovery” under Code § 8.01-195.3. This statute does not address the Commonwealth's ability to settle claims before litigation, but focuses on whether claims can succeed in litigation. Each of the exclusions listed in Code § 8.01-195.3, then, must be understood as setting out the circumstances under which the Commonwealth does not waive its sovereign immunity, with the effect of preventing certain lawsuits from going forward.

4. The majority's interpretation does not work with the text or context of Code § 8.01-195.3(7).

Text and context are critical, but the majority opinion ignores both. The majority reasons that because Code § 8.01-195.3 states that the Commonwealth is liable for “claims for money only accruing on or after July 1, 1982,” and because “a complaint does not ‘accrue,’ but a cause of action does,” the word “claim” whenever used in Code § 8.01-195.3 must mean a “cause of action” or “the set of facts allegedly giving rise to the right to recover.” Then, without analyzing the phrase “claim by an inmate,” or the accompanying affidavit requirement in subsection (7), the majority concludes that this portion of the statute affixes the exhaustion requirement on when the claim first accrues. The majority supports this conclusion by finding other portions of the VTCA that support the notion that claim means “cause of action” or “the set of facts allegedly giving rise to the right to recover.”

As discussed above, the VTCA governs various stages of the evolution of a claim, and context is necessary to determine which stage of a claim a given provision refers to. I readily concede that an inmate generally possesses a “claim” for recovery before the complaint is ever filed and that in some parts of the VTCA, “claim” refers to the point at which the claim accrues. But, as I have set out above, sometimes the VTCA references the point at which a “claim” is filed in litigation. Because subsection (7) focuses on when a “claim by an inmate” is advanced in litigation, and must therefore include an affidavit demonstrating the exhaustion of administrative remedies, the language used by the legislature “clear[ly] indicates” that this exclusion focuses on when an inmate brings that claim to a court. Eberhardt v. Fairfax Cnty. Emps.’ Ret. Sys. Bd. of Trs., 283 Va. 190, 195, 721 S.E.2d 524 (2012). It is only when the complaint is filed that a court evaluates whether the claimant is an inmate, and thus whether an affidavit is needed to waive the Commonwealth's sovereign immunity and allow the claimant “recovery” at law. Cf. Massenburg v. City of Petersburg, 298 Va. 212, 221, 836 S.E.2d 391 (2019) (finding that a court properly granted a city's plea in bar of sovereign immunity and dismissed the action when the uncontested facts in the complaint did not give rise to the city's liability).

Even assuming for the sake of argument that “claim” means “cause of action” every time it is used in the VTCA (ignoring that the VTCA separately refers to “cause of action” in several places, as discussed above), that would not prove that subsection (7) ties the exhaustion requirement to the point at which the cause of action accrues. If Code § 8.01-195.3(7) were rewritten to exclude from recovery “[a]ny cause of action by an inmate of a state correctional facility ․ unless the claimant verifies under oath, by affidavit, that he has exhausted his remedies ․” the overall context of the statute would still focus on the litigation phase—the point at which the inmate asserts the cause of action—for all the reasons already discussed. The filing of the complaint is when a court determines whether sovereign immunity bars the claim, or cause of action, and that is when the “claimant” must file an affidavit of exhaustion with the complaint—if the claimant is an inmate at the time of filing.¹⁶

Really, the majority rewrites “claim by an inmate” to instead state, “claim arising out of a period of confinement” or “claim based on an occurrence during a period of confinement.” This is not what the text says. Furthermore, the General Assembly knew how to cast a wider net of exclusions and did so in the surrounding subsections of Code § 8.01-195.3, which exclude “[a]ny claim arising out of the institution or prosecution of any judicial or administrative proceeding,” Code § 8.01-195.3(6) (emphasis added), and claims “based upon an act or omission of an officer, agent or employee of any agency of government in the execution of a lawful order of any court,” Code § 8.01-195.3(4) (emphasis added). Indeed, every other exemption is for “claims” that are “based upon” a certain “act or omission,” or “arising out of” or “in connection with” certain actions or events. These subsections exclude claims based on the subject matter of the claim itself. Added to the statute later, in 1989, subsection (7) is noticeably different. See 1989 Va. Acts. ch. 446. It evaluates claims based on (1) whether the claim is made “by” a specific type of “claimant”—an inmate, and (2) whether the claimant has verified under oath that she has exhausted her administrative remedies. Subsection (7) is conspicuously narrow by comparison.¹⁷

The majority's most convincing argument is based not in text but in policy. It is true that exhaustion requirements “protect[ ] ‘administrative agency authority’ and ‘promote[ ] efficiency’ by encouraging disputes to be resolved ‘quickly and economically’ during the prelitigation administrative process.” AlBritton, 299 Va. at 400, 853 S.E.2d 512 (quoting Woodford v. Ngo, 548 U.S. 81, 89, 126 S.Ct. 2378, 2385, 165 L.Ed.2d 368 (2006)). While our Supreme Court has explained that these policy rationales support the General Assembly's decision to include an exhaustion requirement, those policy rationales do not permit us to impose that requirement where the General Assembly has not manifested an intention to do so. When public policy arguments “contravene clear statutory language,” they “should be addressed to the legislature, not the courts.” Hartford Underwriters Ins. Co. v. Allstate Ins. Co., 301 Va. 460, 474 n.12, 880 S.E.2d 786 (2022). Here, the clear language carries the day.

Requiring inmates to exhaust all remedies if they are incarcerated when a cause of action arises would mean that, applied literally, any inmate released before the exhaustion process is complete would never be able to sue. The grievance process is long. The total time from the start of a complaint to resolution, including authorized continuances, is 180 days.¹⁸ To avoid concluding that any inmate with a sentence shorter than 180 days would be excluded from the VTCA, the majority is forced to rely on an atextual escape clause, affirming that only reasonable compliance with the VTCA is required, so that “[i]f the claimant begins the process and is released before it is completed, the claimant has exhausted all the available remedies.” This is a humane work-around, to be sure, but it is not what the plain text says under the majority's telling.

The majority's interpretation also creates tension with the exhaustion requirement within a different statute that requires an inmate to exhaust all remedies, Code § 8.01-243.2. The “inmate statute” states: “No person confined in a state or local correctional facility shall bring or have brought on his behalf any personal action relating to the conditions of his confinement until all available administrative remedies are exhausted.” Unlike the VTCA, the “inmate statute is not limited to tort claims,” but “deals with all classes of litigation.” Ogunde, 271 Va. at 644, 628 S.E.2d 370. Interpreting this statute, the Supreme Court explained that someone cannot exhaust her administrative remedies unless she is incarcerated and that it matters whether she has exhausted her remedies before the “filing [of] a personal action” in court, not at the time the cause of action accrues. Lucas v. Woody, 287 Va. 354, 361, 756 S.E.2d 447 (2014). “[A]n individual would necessarily need to be confined in order to take advantage of administrative remedies offered by a state or local correctional facility.” Id.

The inmate statute was “enacted in 1998,” after the VTCA “was adopted in 1981.” Ogunde, 271 Va. at 643, 628 S.E.2d 370. It would be odd for the General Assembly to apply one policy in the later-adopted, broader statute covering all inmate claims, evaluating the exhaustion requirement based on the carceral status of the filer, if the VTCA had already pinned the exhaustion requirement to carceral status at the time of injury.

Before concluding, we acknowledge that Lucas found that the statute of limitations in the inmate statute, Code § 8.01-243.2, continues to apply even to those who have been released from incarceration. But Lucas reached its conclusion to avoid applying two different statutes of limitations to the same cause of action based on whether a complaint was filed before or after an inmate was released. 287 Va. at 362, 756 S.E.2d 447. This makes sense, as statutes of limitations ordinarily run from the date of injury, and do not fluctuate depending on the status of a claimant. Id. Lucas’s analysis is not an issue for our interpretation of the VTCA because the VTCA is “self-contained, incorporating its own statute of limitations, which likewise is self-contained.” Bing v. Haywood, 283 Va. 381, 386, 722 S.E.2d 244 (2012) (quoting Ogunde, 271 Va. at 644, 628 S.E.2d 370). When an inmate brings an action under the VTCA, even when that action is related to her conditions of confinement, the VTCA's statute of limitations applies. Id. (citing Ogunde, 271 Va. at 643-44, 628 S.E.2d 370). Moreover, procedural prerequisites to filing a suit, such as a claimant's “verifi[cation] under oath, by affidavit, that he has exhausted his remedies under the adult institutional inmate grievance procedures promulgated by the Department of Corrections,” are different than statutes of limitation because they fasten to litigation, while a statute of limitations begins to run when a claim accrues. Neither do we take issue with former inmates, released without exhausting their remedies, having an opportunity to file a tort claim under the VTCA while current inmates may not do so. This circumstance is permitted by the statute's language. And the majority has no conceptual issue with it either, because they concede that under their interpretation, different exhaustion requirements will apply based on whether an inmate has a long enough sentence to fully exhaust her remedies.¹⁹

Our primary duty is to interpret the meaning of the statute based on its text. “[W]e ask ‘not what the legislature intended to enact, but what is the meaning of that which it did enact. We must determine the legislative intent by what the statute says and not by what we think it should have said.’ ” Vasquez v. Dotson, 303 Va. 97, 104, 899 S.E.2d 631 (2024) (quoting Carter v. Nelms, 204 Va. 338, 346, 131 S.E.2d 401 (1963)). Because the statute says that former inmates who file a complaint under the VTCA are not subject to the VTCA's exhaustion requirement, that is what the statute means. Interpreting the statute this way does not create an unworkable system—nor is it absurd.²⁰ Cf. Commonwealth v. Doe, 278 Va. 223, 230, 682 S.E.2d 906 (2009) (“[A] court must avoid any literal interpretation of a statute that would lead to absurd results.”). “Given our commitment to ‘neutral principles of interpretation,’ we are not ‘free to pave over bumpy statutory texts in the name of more expeditiously advancing a policy goal.’ ” Vasquez, 303 Va. at 104, 899 S.E.2d 631 (quoting Appalachian Power Co. v. State Corp. Comm'n, 301 Va. 257, 279, 876 S.E.2d 349 (2022)). If the General Assembly prefers a different system, then it is for the General Assembly, and not this Court, to amend the statute accordingly.²¹

B. Williams's notice of claim was sufficient to satisfy Code § 8.01-195.6.

Because I would find that Williams was not required to exhaust her remedies since her complaint was filed when she was no longer an inmate, I must briefly address whether she gave sufficient notice of her claim. All litigants asserting claims under the VTCA must clear the procedural hurdle of filing a “notice of claim.” Code § 8.01-195.6. Even though Williams was not required to exhaust her administrative remedies under the grievance procedures of VDOC, she still needed to file a notice of claim that complies with Code § 8.01-195.6.

The notice of claim requirement is a condition precedent to maintaining a cause of action against the Commonwealth. Relevant here, the notice must include two things: “(1) the time and place at which the injury allegedly occurred and (2) the agency or agencies allegedly liable.” Halberstam v. Commonwealth, 251 Va. 248, 251, 467 S.E.2d 783 (1996). The Commonwealth has not waived sovereign immunity unless each element is stated with specificity. Id. That is because, without “explicit notice in writing of the time and place of an accident,” “the likelihood of prompt attention to the matter to protect the interests of the [Commonwealth] and the public is materially diminished.” Bates v. Commonwealth, 267 Va. 387, 392, 593 S.E.2d 250 (2004) (alteration in original) (quoting Halberstam, 251 Va. at 252, 467 S.E.2d 783).

Our Supreme Court has explained that a notice is sufficient under the VTCA if it allows for the “reasonable identification” of the place of injury such that the Commonwealth “is in a position to investigate and evaluate that claim.” Bates, 267 Va. at 394, 593 S.E.2d 250. Reasonableness is not a bright-line test; it depends on the allegations specific to the case. Id.

In Halberstam, for example, the plaintiff who fell in a parking lot at George Mason University (GMU) sent a letter to the Director of the Division of Risk Management stating that “a pothole or eroded area in the asphalt of the [GMU] parking lot” caused her to “fall and injure herself.” 251 Va. at 250, 467 S.E.2d 783. Because her notice “[did] not specify the location of the injury” beyond noting that it occurred in the “school parking lot” of GMU, and because GMU has several parking lots, id. at 251, 467 S.E.2d 783, she failed to describe a location “reasonably calculated” to give the Commonwealth adequate notice under the VTCA, Bates, 267 Va. at 394, 593 S.E.2d 250.

Unlike the plaintiff in Halberstam, the plaintiff in Bates was found to have provided a notice of claim that was sufficient to waive the Commonwealth's sovereign immunity under the VTCA. Bates mailed a notice of claim to the Attorney General of Virginia that designated the place of injury as the “University of Virginia Health Sciences Center, Charlottesville, Virginia.” Id. at 390, 593 S.E.2d 250. The Court held that because there was “only one University of Virginia Medical Center in Charlottesville,” her notice of claim reasonably identified the location of injury and did not need to include the precise “floor or room.” Id. at 394-95, 593 S.E.2d 250. Thus, in Bates, “reasonable compliance with the requirements of the [VTCA], not perfect compliance, was sufficient to invoke [the Commonwealth's] statutory waiver of sovereign immunity.” Billups v. Carter, 268 Va. 701, 710, 604 S.E.2d 414 (2004).

Williams sent two notices of claim to the Office of the Attorney General. She sent a handwritten letter on August 20, 2019, which stated that she intended to file a claim “regarding an incident where [she] was hurt during transportation to UVA hospital by corrections officers at Fluvanna Correctional Center.” She stated that the “Department of Corrections [we]re at fault” because “upon arriving at the hosp[ital], [she] was dropped backwards while still handcuffed and shackled.” According to that notice, the incident occurred on October 10, 2018. The second notice of claim submitted by Williams’ counsel on October 8, 2019 served as “further notice” that Williams was pursuing a claim for “injuries sustained by [ ] Williams while incarcerated at the Fluvanna Correctional Center” and that “on or about” October 10, 2018, “Williams, while at the Fluvanna Correctional Center, was pulled backwards out of a transport van in handcuffs and was dropped to the ground.” The notice alleges that the personnel were reckless in causing her to fall and states the intention to seek compensation for her injuries.

The Commonwealth argues that the notices fail to sufficiently identify both the time and place of the injury. Interpreting “time” to require an hour and minute, the Commonwealth says neither notice states the time. As for “place,” the Commonwealth relies on an alleged discrepancy between the two notices. While the first notice stated that the incident occurred during “transportation to UVA hospital by corrections officers” and “upon arriving” at the UVA hospital, the Commonwealth reads the second notice to state that the injury occurred when Williams was “pulled backwards out of a transport van” at the Fluvanna Correctional Center.

The Commonwealth has cited no precedent to support its interpretation of “time” as requiring an hour and minute, versus a date. While “time” could mean the precise second something occurred, it can also refer more generally to when something took place. In keeping with our Supreme Court's determination that “reasonable compliance” with the VTCA's notice provision is enough to invoke the waiver of the Commonwealth's immunity, we find that identifying a date was sufficient here to meet this requirement and allow the agency to investigate the underlying incident and respond to the notice of claim. Billups, 268 Va. at 710, 604 S.E.2d 414.²²

We also find that Williams described the place of the injury with enough specificity to pass muster under Code § 8.01-195.6. Both notices state that the place of injury was a VDOC transport van. Williams's notices described the type of vehicle (a transport van that was not handicap-equipped), the owner of the vehicle (VDOC), the operators of the vehicle (VDOC officers), and the location of the vehicle before transporting Williams (Fluvanna). The first notice specifies that the injury occurred when officers tried to remove her from the vehicle upon arriving at UVA Hospital. While it is possible to read the second notice to say the injury occurred at Fluvanna, as the Commonwealth does, it is just as possible to read that notice as simply stating that Williams was an inmate at Fluvanna at the time the injury occurred, not that the fall from the transport van took place while the van was at Fluvanna.

Unlike the notice in Halberstam, designating the “place” of injury as an unidentified parking lot among many possible parking lots, the notices here were specific—the injury occurred while Williams was being removed from a transport van that went between Fluvanna and UVA Hospital. Furthermore, the injury here occurred in a vehicle, a means of conveyance. If Williams had fallen while the van was still moving, the VTCA would not require her to identify the mile marker of where that fall took place. Only one transport van took Williams from Fluvanna to UVA Hospital “on or about October 10.” Williams provided enough detail to “reasonably identify” the location of her injury as the non-handicap-equipped transport van into which she was loaded such that the Commonwealth could respond to and investigate her allegations of negligence. Bates, 267 Va. at 394, 593 S.E.2d 250.²³

For these reasons, I would reverse the decision of the circuit court dismissing her complaint and remand for further proceedings.

FOOTNOTES

1.   This notice listed the date of the injury, but it did not give the time of the incident. It also indicated that the injury occurred “during transportation to UVA hospital” and “when arriving at the hospital.”

2.   This supplemental notice again listed the date of injury without stating the time of the incident. It also said that the injury occurred at the Fluvanna Correctional Center.

3.   During oral argument there was some concern about how the Court's interpretation would affect those individuals who were released from incarceration before they had an opportunity to fully exhaust the administrative remedies. But this concern is misplaced. As our Supreme Court has noted, only “reasonable compliance with the requirements of the [VTCA], not perfect compliance,” is required. Billups v. Carter, 268 Va. 701, 710, 604 S.E.2d 414 (2004). Exhaustion is required so long as the claimant had the temporal opportunity to exhaust his or her administrative remedies. See AlBritton v. Commonwealth, 299 Va. 392, 402, 853 S.E.2d 512 (2021) (finding that a claimant who “did all that he could have done to exhaust his administrative remedies” has reasonably complied with the requirements of Code § 8.01-195.3(7)); Billups, 268 Va. at 709, 604 S.E.2d 414 (finding that exhaustion turned on whether the plaintiff “had in fact exhausted such administrative remedies as were available”). If the claimant begins the process and is released before it is completed, the claimant has exhausted all the available remedies.

4.   Because we conclude that Code § 8.01-195.3(7) required Williams to submit an affidavit verifying she had exhausted her administrative remedies to fit within the limited waiver of the Commonwealth's sovereign immunity, we do not reach whether her written notices complied with the requirements of Code § 8.01-195.6(A).

5.   The dissent asserts that we have “look[ed] to every portion of the VTCA but the one before us.” While we are required to look at the phrase we are interpreting, we must also be “careful to ensure that statutes ‘not ․ be construed by singling out a particular phrase.’ ” Cox v. Commonwealth, 73 Va. App. 339, 345, 859 S.E.2d 690 (2021) (alteration in original) (quoting Eberhardt, 283 Va. at 195, 721 S.E.2d 524). We have considered “claim by an inmate” in the context of the entire VTCA. Moreover, Code § 8.01-195.3, which refers to a “claim” as “accruing,” is the same statutory provision that contains subsection (7), which is the “claim by an inmate” provision before us.

6.   Our colleagues in the dissent point out that Code § 8.01-195.6 and Code § 8.01-195.7 also separately refer to both “claim” and the accrual of a cause of action. See Code § 8.01-195.6(A) (“Every claim cognizable against the Commonwealth ․ shall be forever barred unless the claimant ․ has filed a written statement of the nature of the claim ․ within one year after such cause of action accrued.”); Code § 8.01-195.7 (“All claims against the Commonwealth ․ shall be forever barred unless such action is commenced within 18 months of the filing of the notice of claim, or within two years after the cause of action accrues.”). But Code § 8.01-195.6(A) specifically equates “claim” with the cause of action accruing by using the language “such cause of action.” See Joyce, 82 Va. App. at 527, 907 S.E.2d 552 (noting that “ ‘such’ means ‘[t]hat or those; having just been mentioned’ ” and “must refer to something that has already been mentioned” (alteration in original) (quoting Such, Black's Law Dictionary (11th ed. 2019))). Code § 8.01-195.7, on the other hand, specifically marries “claim” to the time for filing in court by using “such action.” This further supports our position, in demonstrating that the General Assembly can, when it chooses, place the focus on proceedings in court.

7.   The dissent points to the Federal Prison Litigation Act, and notes that federal courts are uniform in interpreting the statute such that it does not require former inmates who file a complaint to comply with the exhaustion requirement. We find this argument unavailing. The federal statute uses different language than the VTCA. It provides that “[n]o action shall be brought ․ by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Thus, it specifically ties the exhaustion requirement to an “action” rather than a “claim.”

8.   Code § 8.01-195.3(7) is not a model of clarity. But even if we assume that it is ambiguous and does not clearly indicate whether it applies to inmates who have been released from prison by the time they file their complaints, the statute should nevertheless be construed to require exhaustion unless it is not possible. As the Supreme Court of the United States has noted, “because the power to waive the federal government's immunity is [the legislature's] prerogative, not [the Court's], th[e] Court applies a ‘clear statement’ rule.” Dep't of Agric. Rural Dev. Rural Hous. Serv. v. Kirtz, 601 U.S. 42, 48, 144 S.Ct. 457, 465–66, 217 L.Ed.2d 361 (2024) (quoting FAA v. Cooper, 566 U.S. 284, 291, 132 S.Ct. 1441, 1448–49, 182 L.Ed.2d 497 (2012)). Under the federal clear-statement rule, the Court “will permit a suit against the government only when a statute ‘unmistakabl[y]’ allows it.” Id. (alteration in original) (quoting FAA, 566 U.S. at 291, 132 S.Ct. at 1448–49); accord Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 281 (2012) (“Presumption Against Waiver of Sovereign Immunity”). Similar to the clear-statement rule, our Supreme Court has held that a “waiver of sovereign immunity will not be implied from general statutory language but must be explicitly and expressly stated in the statute.” Montalla, LLC. v. Commonwealth, 303 Va. 150, 165, 900 S.E.2d 290 (2024) (quoting All. to Save the Mattaponi, 270 Va. at 455, 621 S.E.2d 78); see also Afzall v. Commonwealth, 273 Va. 226, 230, 639 S.E.2d 279 (2007) (same); Rector & Visitors of the Univ. of Va. v. Carter, 267 Va. 242, 244-45, 591 S.E.2d 76 (2004) (same). Nothing in Code § 8.01-195.3(7) is sufficiently clear to constitute a clear waiver of the Commonwealth's immunity for inmates that are no longer incarcerated and that did not exhaust their administrative remedies when they had the opportunity to do so. Thus, we would still find that the Commonwealth did not waive its sovereign immunity.

9.   The dissent correctly notes that we cannot rely on public policy arguments that contravene clear statutory language and that “we are not ‘free to pave over bumpy statutory texts in the name of more expeditiously advancing a policy goal.’ ” Vasquez v. Dotson, 303 Va. 97, 104, 899 S.E.2d 631 (2024) (quoting Appalachian Power Co. v. State Corp. Comm'n, 301 Va. 257, 279, 876 S.E.2d 349 (2022)). Rather than contravene statutory language, however, the public policy rationale simply supports our interpretation of the language of the statute. Further, in interpreting the statute as it does, the dissent ignores the rules we are required to follow when interpreting waivers of the Commonwealth's sovereign immunity and the VTCA. See Canter, 82 Va. App. at 602, 908 S.E.2d 142 (noting that the VTCA is “in derogation of the common law, [and] is strictly construed”); Muwahhid, 77 Va. App. at 829, 887 S.E.2d 801 (noting that a waiver “will not be implied from general statutory language but must be explicitly and expressly stated in the statute” (quoting All. to Save the Mattaponi, 270 Va. at 455, 621 S.E.2d 78)).

10.   The Supreme Court also noted that Code § 8.01-243.2 “requires a person who is confined to exhaust all administrative remedies before filing a personal action relating to conditions of confinement.” Lucas, 287 Va. at 361, 756 S.E.2d 447. It reasoned that it “makes sense in that an individual would necessarily need to be confined in order to take advantage of administrative remedies offered by a state or local correctional facility.” Id. While we agree that a person must be incarcerated in order to exhaust administrative remedies, we do not find this reasoning inconsistent with our interpretation. As noted above, exhaustion is required so long as the claimant had the temporal opportunity to exhaust his or her administrative remedies. See AlBritton, 299 Va. at 402, 853 S.E.2d 512 (finding that a claimant who “did all that he could have done to exhaust his administrative remedies” has reasonably complied with the requirements of Code § 8.01-195.3(7)). If the plaintiff was released from incarceration before he or she had the ability to fully exhaust his or her remedies, then he or she would not be barred from filing suit.

11.   I consider both notices together, as each was properly sent to the Attorney General. See Halberstam, 251 Va. at 252, 467 S.E.2d 783 (only considering letters which were “sent to an official designated in the statute and in the manner prescribed by the statute ․ ”).

12.   When faced with the issue of differing notices, at least one of our sister state courts has reached this exact conclusion: that the change in location in the notice, even by misidentification, renders the notice defective. Glaspie v. City of Detroit, No. 298877, 2011 WL 6376024, at *3, 2011 Mich. App. LEXIS 2278, at *6 (Dec. 20, 2011) (“Plaintiff misidentified the defect's location in her initial notice and therefore clearly did not provide a ‘specific description of the location.’ This rendered the notice defective.” (quoting Plunkett v. Dep't of Transp., 286 Mich.App. 168, 779 N.W.2d 263, 270 (2009))).

13.   It appears that Williams attempted to reconcile this conflict after the fact, noting in her brief to this Court upon rehearing en banc that she “erroneously omitted the word ‘incarcerated’ before ‘Fluvanna Correctional Center’ ” in her second notice.

14.   As the locations of the notices are in conflict with each other as to render them noncompliant with the VTCA, I would not reach the question of whether the notices had to have alleged a specific “time” under Code § 8.01-195.6(A). See Commonwealth v. White, 293 Va. 411, 419, 799 S.E.2d 494 (2017) (we decide cases on the “best and narrowest” grounds). Also, Williams urges this Court to find that the Virginia Department of Corrections had actual notice of her claim. But this argument is also unpersuasive, as even actual notice “does not obviate [Williams]’s duty to strictly comply with the Act's notice provisions.” Melanson v. Commonwealth, 261 Va. 178, 184, 539 S.E.2d 433 (2001) (quoting Halberstam, 251 Va. at 252, 467 S.E.2d 783).

15.   The verification could not take place at the same time the cause of action accrues, and the majority has not identified any other point in time when an inmate might verify, under oath, that administrative remedies have been exhausted.

16.   I agree with the Commonwealth, and Williams, who have both consistently argued that there is no ambiguity in the statute. For this reason, the clear statement rule does not apply. Gregory v. Ashcroft, 501 U.S. 452, 470, 111 S.Ct. 2395, 2406, 115 L.Ed.2d 410 (1991) (explaining that the plain statement rule is a “rule of statutory construction to be applied where statutory intent is ambiguous”). And because the waiver of sovereign immunity is “explicitly and expressly stated in the statute,” the rule that a court must not imply such a waiver does not come into play here. Commonwealth v. Muwahhid, 77 Va. App. 821, 829, 887 S.E.2d 801 (2023) (quoting All. to Save the Mattaponi v. Commonwealth Dep't of Env't Quality ex rel. State Water Control Bd., 270 Va. 423, 455, 621 S.E.2d 78 (2005)).

17.   As discussed more below, the General Assembly did address claims “relating to” a current, or former, period of incarceration in Code § 8.01-243.2, which sets out the statute of limitations that applies to prisoners bringing “any personal action relating to the conditions of [their] confinement.” While the General Assembly knew how to exclude claims by inmates relating to the conditions of incarceration, it chose not to do so in Code § 8.01-195.3(7). See Chenevert v. Commonwealth, 72 Va. App. 47, 57, 840 S.E.2d 590 (2020) (The examining court “assume[s] ․ the legislature chose, with care, the words it used when it enacted the relevant statute.” (quoting Coles v. Commonwealth, 44 Va. App. 549, 557-58, 605 S.E.2d 784 (2004))).

18.   The Virginia Department of Corrections Operating Procedure 866.1 outlines the Offender Grievance Procedure that applies to all units operated by the Virginia Department of Corrections. See Virginia Department of Corrections Operating Procedure 866.1: Offender Grievance Procedure (Jan. 1, 2021), https://perma.cc/V9H9-YDDS. There are many phases of the grievance process, including the informal verbal complaint process, the submission of a written complaint, and the filing of a “regular grievance.” Id. § I(D), at 4-5. Considering all the relevant time periods for submission and staff response, as well as allowable continuances, “[t]he total time allowed from initiation of a complaint to resolution through the regular grievance process is 180 days including authorized continuances.” Id. § III(F)(2)(a), at 10.

19.   There is also no textual ambiguity here the way there is in Code § 8.01-243.2’s reference to “such person.” In Lucas, the Supreme Court concluded “such person” was ambiguous as to whether it referred to the person bringing a lawsuit relating to conditions of confinement or also incorporated the condition that the person be incarcerated. 287 Va. at 361-63, 756 S.E.2d 447. This case presents no such textual ambiguity and does not involve an issue of incorporation by reference.

20.   In fact, the Federal Circuits are uniform in interpreting the exhaustion requirement of the Federal Prison Litigation Reform Act (PLRA) the same way. The PLRA states that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997(e)(a). “In light of the PLRA's plain language ․ a plaintiff who seeks to bring suit about prison life after he has been released and is no longer a prisoner does not have to satisfy the PLRA's exhaustion requirements before bringing suit.” Norton v. City of Marietta, 432 F.3d 1145, 1150 (10th Cir. 2005). See also, e.g., Bargher v. White, 928 F.3d 439, 447-48 (5th Cir. 2019) (explaining that the PLRA's “plain language” would require a court to dismiss the action of a current inmate who fails to comply with such requirements, but would not bind someone who files or “refiles” their complaint upon release from prison); Cofield v. Bowser, 247 Fed. App'x 413, 414 (4th Cir. 2007) (per curiam) (same); Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005) (en banc) (“[Plaintiff] was not subject to the PLRA's exhaustion requirement because he was not a prisoner or otherwise incarcerated when he filed his complaint.”); Witzke v. Femal, 376 F.3d 744, 750 (7th Cir. 2004) (same); Cox v. Mayer, 332 F.3d 422, 424-25 (6th Cir. 2003) (same); Ahmed v. Dragovich, 297 F.3d 201, 210 (3d Cir. 2002) (same); Medina-Claudio v. Rodriguez-Mateo, 292 F.3d 31, 35 (1st Cir. 2002) (same); Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000) (same); Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999) (per curiam) (same). The Federal Circuit courts are split, however, on the PLRA's use of the word “brought” and the question of “whether a prisoner who fails to comply with that exhaustion requirement may cure the defect by filing an amended or supplemental complaint after his release.” Wexford Health v. Garrett, ––– U.S. ––––, 140 S. Ct. 1611, 1611-12, 206 L.Ed.2d 955 (2020) (Thomas, J., dissenting from denial of certiorari) (identifying circuit split).

21.   As discussed above, the General Assembly did require exhaustion for any individual bringing actions related to the conditions of their confinement under Code § 8.01-243.2, but our Supreme Court has held that the statute of limitations in that code section does not apply to the VTCA, which is self-contained. See Ogunde, 271 Va. 639, 628 S.E.2d 370. In the more than 15 years following the decision in Ogunde, the General Assembly has not amended the relevant statutes to indicate that these same requirements should in fact apply to claims brought under the VTCA.

22.   Other courts have reached the same conclusion. See, e.g., Fort Wayne v. Bender, 57 Ind.App. 689, 105 N.E. 949, 950-51 (1914) (explaining that the “time of injury” does not “require a particular statement as to whether the accident occurred in the forenoon, or in the afternoon, or in the evening of a given day,” or “any statement as to the hour or the minute of the day upon which the injury occurred,” but “reasonable certainty requires ․ the date of the injury”); Lilly v. Woodstock, 59 Conn. 219, 22 A. 40, 42 (1890) (“As to the time when the injury was sustained, we see no basis for the claim that naming the correct day is not a sufficient compliance with the letter and the spirit of the statute, though the hour of the day is not named.”); Nova v. Town of Hamden, No. CV-22-6126940-S, 2023 WL 3716751, at *3 n.5, 2023 Conn. Super. LEXIS 723, at *5 n.5 (May 23, 2023) (collecting Connecticut Superior Court cases finding that a failure to include the time of day in a notice of claim is not a fatal defect). This does not mean that there will not be cases where a day alone is insufficient, and some approximation of the time is necessary to give sufficient notice of a claim. The level of specificity required depends on the facts of the case.

23.   Because we would find that her notices are sufficient, we do not consider whether the Commonwealth had actual knowledge of the incident and injury under Code § 8.01-195.6(A).

OPINION BY JUDGE RICHARD Y. ATLEE, JR.