Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton,∗ S.J.

OLUDARE OGUNDE                            OPINION BY
                              SENIOR JUSTICE A. CHRISTIAN COMPTON
     v.   Record No. 050212             April 21, 2006

COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
                    W. Allan Sharrett, Judge

     The dispositive question in this appeal is whether the

trial court erred in ruling that an action filed by a prisoner

under the Virginia Tort Claims Act (the Act), Code §§ 8.01-

195.1 to -195.9, is governed by the statute of limitations

applicable to persons confined in state correctional

facilities, as set forth in Code § 8.01-243.2, and not by the

statute of limitations prescribed by Code § 8.01-195.7 for

actions brought under the Act.

     Plaintiff Oludare Ogunde is an inmate incarcerated at the

Greensville Correctional Center in Jarratt.   In August 2004,

he filed this action under the Act against the Commonwealth

alleging that the Commonwealth's employees negligently

assigned him to an upper bunk bed and, in December 2002,

ordered him to climb down from the bed for roll call when they

knew, or should have known, that he had an injured knee and

could fall.   He further alleges that as the result of the


     ∗
       Senior Justice Compton participated in the hearing and
decision of this case before his death on April 9, 2006.
employees' negligence, he fell and injured his back, for which

he seeks recovery in damages.

     The plaintiff timely filed the notice of claim required

by Code § 8.01-195.6 of the Act, and likewise timely filed

this action under the Act's statute of limitations, Code

§ 8.01-195.7.

     The Commonwealth filed a plea of the statute of

limitations, contending that the action was untimely and was

barred under Code § 8.01-243.2 (the inmate statute), which

limits the time that persons confined in correctional

facilities may bring actions pertaining to conditions of their

confinement.    The trial court sustained the plea and dismissed

the action.    The plaintiff appeals.

     The inmate statute, § 8.01-243.2, provides:

     "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. Such action shall be
     brought by or on behalf of such person within one
     year after [the] cause of action accrues or within
     six months after all administrative remedies are
     exhausted, whichever occurs later."

     The Act's statute of limitations, § 8.01-195.7, provides,

as pertinent:   "Every claim cognizable against the

Commonwealth" under the Act "shall be forever barred, unless

within one year after the cause of action accrues to the

claimant the notice of claim required by § 8.01-195.6 is


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properly filed."   The statute of limitations then refers to

certain time limits for available administrative remedies and

provides:   "All claims against the Commonwealth" under the Act

"shall be forever barred unless such action is commenced

within eighteen months of the filing of the notice of claim."

     The Act refers to claims filed by inmates and provides

that an inmate must first exhaust administrative remedies.

Code § 8.01-195.3, in subparagraph (7), requires "[a]ny claim

by an inmate of a state correctional facility" to be excluded

from the Act unless the claimant verifies under oath "that he

has exhausted his remedies under the adult institutional

inmate grievance procedures promulgated by the Department of

Corrections."

     Subparagraph (7) further provides:     "The time for filing

the notice of tort claim shall be tolled during the pendency

of the grievance procedure."

     The question in this case then becomes:    When there are

two potentially applicable statutes of limitations, which

statute applies to an inmate's claim under the Act?    There is

no dispute that if the Act's statute of limitations applies,

this action was timely filed; if the limitation of the inmate

statute applies the trial court's ruling was correct.

     On behalf of the Commonwealth, the Attorney General

contends that the inmate statute applies.    He relies on the


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rule of statutory construction "that when one statute speaks

to a subject in a general way and another deals with a part of

the same subject in a more specific manner, the two should be

harmonized, if possible, and where they conflict, the latter

prevails."   Virginia Nat'l Bank v. Harris, 220 Va. 336, 340,

257 S.E.2d 867, 870 (1979).   He argues that the inmate statute

is more specific as it applies only to prisoners while the Act

applies generally to all plaintiffs.

     Continuing, the Attorney General says that both statutes

are clear and unambiguous and that they can be read

harmoniously in the following manner.   He notes that the

purpose of the Act is to carve out an exception to the

doctrine of sovereign immunity to allow citizens injured by

state employees' negligence to sue the Commonwealth.    He says

that the Act provides relief generally to those coming within

its purview so long as they otherwise comply with the

procedures prescribed in the Act, including those in

subparagraph (7) above.   On the other hand, according to the

Attorney General, the inmate statute specifically applies when

"the plaintiff is a prisoner and the subject matter relates to

the conditions of his confinement."

     Finally, the Attorney General contends that a later

enacted statute prevails over an earlier one with which it

conflicts.   The Act was adopted in 1981.   1981 Acts ch. 449.


                                4
The inmate statute was enacted in 1998.   1998 Acts ch. 596.

According to the Attorney General, the legislature was "well

aware" of the Act's provisions when it enacted the inmate

statute in 1998.   Thus, he maintains, "the intent of the

General Assembly was to carve out of the Act a more

restrictive statute of limitations where the plaintiff was a

prisoner suing over the conditions of his confinement."

     We do not agree with the Attorney General's several

arguments.   At the outset, it should be noted that in the view

we take of the case we do not reach for decision the question

whether this inmate's action involving allegedly negligent

conduct of state employees relates to "the conditions of his

confinement," as that phrase is used in the inmate statute.

For the purposes of this discussion, we will assume, without

deciding, that this action does relate to conditions of

confinement.

     The trial court's ruling regarding which statute of

limitations applies was based upon the pleadings and presents

a pure question of law to be reviewed de novo by this Court.

Wilby v. Gostel, 265 Va. 437, 440, 578 S.E.2d 796, 798 (2003).

It is elementary that when construing a statute, courts must

ascertain and give effect to the legislature's intention.

Chase v. DaimlerChrysler Corp., 266 Va. 544, 547, 587 S.E.2d

521, 522 (2003).   In determining that intent, the plain


                                5
language of an unambiguous statute will be applied.    Brown v.

Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985).     And,

rules of statutory construction will be used by the courts to

harmonize enactments when the plain language of two statutes

apparently conflict.   See Boynton v. Kilgore, 271 Va. 220,

227, 623 S.E.2d 922, 926 (2006).

     Employing these settled principles, we hold that the

Act's statute of limitations applies to this inmate's tort

action seeking recovery in damages for the ordinary negligence

of state employees.

     The Act is self-contained, incorporating its own statute

of limitations, which likewise is self-contained.   The Act's

limited waiver of sovereign immunity is set forth in § 8.01-

195.3.   There, the limited circumstances in which a litigant

can sue the Commonwealth are described.   Subparagraph (7) of

that section refers specifically to "[a]ny claim" filed by

inmates, and requires the inmate to first exhaust

administrative remedies.

     Significantly, the second sentence of subparagraph (7)

tolls, during the pendency of the grievance (administrative)

procedure, the time for filing the notice of the tort claim.

If the inmate statute were to apply here, its final sentence,

fixing the time limit for filing suit, would impliedly repeal

the second sentence of subparagraph (7) by potentially


                                6
eliminating the tolling provision, as the Attorney General

properly concedes.



     We will not attribute to the General Assembly an

intention to impliedly repeal the tolling provided in

subparagraph (7).    "The implied repeal of an earlier statute

by a later enactment is not favored.   There is a presumption

against a legislative intent to repeal where the later statute

does not amend the former or refer expressly to it."      Sexton

v. Cornett, 271 Va. 251, 257, 623 S.E.2d 898, 901 (2006).

Obviously, the inmate statute does not amend the Act nor does

it refer expressly to it.

     These intersecting statutes can be harmonized.       As the

plaintiff observes, the inmate statute is not limited to tort

actions.   It may cover, for example, declaratory judgment

actions, suits for injunctive or other equitable relief, and

mandamus petitions, so long as they relate to the conditions

of the prisoner's confinement.   The inmate statute deals with

all classes of litigation.   On the other hand, the narrower

Act applies to one type of litigation, tort actions against

the Commonwealth.    Even if the tort action relates to

conditions of confinement, the Act nonetheless applies.

     Consequently, we conclude that the trial court erred in

sustaining the plea of the statute of limitations and in


                                 7
dismissing the action.   The judgment appealed from will be

reversed and the case will be remanded for further

proceedings.

                                          Reversed and remanded.




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