Sunday, November 28, 2004

Virginia woman can proceed with prison sex abuse suit

The Charlottesville paper reports here ("Inmate allowed to sue prison," 11/27/04) and the AP reports here that the Virginia Supreme Court has reversed the dismissal of a woman's claims against the Virginia Department of Corrections and individual corrections officials, where the circuit court had ruled that the plaintiff failed to correctly exhaust her administrative remedies.

The Court's opinion, by Senior Justice Russell, in the Billups case came out on November 5. It deals not only with the issue of whether the plaintiff had exhausted her administrative remedies for purposes of both Va. Code 8.01-195.3(7) and 42 U.S.C. 1997e(a), but also whether the plaintiff's section 1983 and common law battery claims were time-barred.

There are surprisingly few Virginia Supreme Court cases dealing with civil constitutional claims (not counting condemnation and habeas corpus), but I think their number and frequency will increase. Prisoner litigation is on the rise, federal civil procedure is perceived by some as more favorable to defendants, the Eleventh Amendment does not apply in state court, the state courts (to the extent their views are unknown) might be viewed as possibly better places to litigate the merits of constitutional claims than the federal courts in the Fourth Circuit (certainly, the Virginia Supreme Court leaned more to the side of individuals vs. the government in the two recent First Amendment cases that were reversed by the U.S. Supreme Court), and as demonstrated by the Goodrich case in Massachusetts, litigants generally who are frustrated with the federal law and procedure may try using the state constitution as a source of substantive rights.

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