Opinion by
Plaintiffs, Vance A. Adams and eighty-four other individuals, were incarcerated in the Crowley County Correctional Facility (CCCF), a private prison housing inmates pursuant to a contract with the Colorado Department of Corrections, at the time of a July 2004 riot at CCCF. They brought this action against defendants, Corrections Corporation of America (CCA), which owns CCCF, and several CCA employees, alleging that they were not involved in the 2004 riot but nevertheless sustained injuries as a result of defendants' аcts and omissions before, during, and after the riot. Plaintiffs sought compensatory and punitive damages on theories of negligence, assault and battery, outrageous conduct, and civil conspiracy. The trial court dismissed the complaint for failure exhaust administrative remedies pursuant section 18-17.5-102.3(1), C.R.S.2007, and additionally dismissed the claim for punitive damages as premature. We affirm in part, reverse in part, and remand for further proceedings.
I.
Plaintiffs contend the trial court erred in dismissing their complaint because section 18-17.5-102.8(1) does not require exhaustion of remedies where only common law tort claims are asserted. We agree.
Construction of a statute presents a question of law that we review de novo. People v. Madden,
A.
Section 183-17.5-102.8(1), states:
No inmate shall bring a civil action based upon prison conditions under any statute or constitutional provision until all available administrative remedies have been exhausted in a timely fashion by the entity operating the detaining facility and inmate. For purposes of this subsection (1), an inmate shall be considered to have exhausted all available administrative remedies when the inmate has completed the last step in the inmate grievance process as set forth in the regulations promulgated by the entity operating the detaining facility. Failure to allege in the civil action that all available administrative remedies have been exhausted in accordance with this subsection (1) shall result in dismissal of the civil action.
(Emphasis added.)
No published opinion has addressed whether this statute, which requires an inmate to exhaust administrative remedies before bringing "a civil action based upon prison conditions under any statute or constitutional provision," also requires exhaustion when claims are brought, not under any statute or constitutional provision, but under the common law. In an unpublished opinion, the federal district court in Colorado rejected CCA's argument that an inmate's negligence claim should be dismissed for failure to comply with section 18-17.5-102.3(1), reasoning: "[Bly its plain language, this provision applies to claims, unlike [the inmate's] state law claims, brought pursuant to a statute or constitutional provision." Wallin v. Alfaro,
We therefore construe the statute according to well-established principles governing statutory interpretation. Our primary task in construing a statute is to ascertain and give effect to the intent of the General Assembly. To do so, we look first to the language of the statute, giving the words and phrases their plain and ordinary meaning. If that meaning is clear, we must give full effect to thе words chosen, as it is presumed that the General Assembly meant what it clearly said. Ceja v. Lemire,
We may not presume that the General Assembly's omission of "common law" from the phrase "under any statute or constitutional provision" was unintentional. See Brooke v. Restaurant Services, Inc.,
Accordingly, we conclude that section 13-17.5-102.8(1) does not, by its plain language, require exhaustion of administrative remedies before bringing a civil action based on prison conditions when such action consists only of claims brought under the common law.
B.
Defendants advance several arguments supporting their contention that section 13-17.5-102.3(1) should nevertheless be read as barring the claims asserted here. In assessing defendants' contentions, we may consider the statute's legislative history notwithstanding our conclusion that the statutory language is unambiguous. See People v. Rockwell,
1.
Defendants contend there would have been no reason for the General Assembly to reference claims brought under the common law because Colorado courts consider only statutory or constitutional claims as "worthy of or appropriate for court review," and do not intervene in matters of prison administration and discipline unless a constitutional or statutory violation is involved. We do not agree.
The authorities on which defendants rely, Powell v. Colorado Public Utilities Commission,
Although defendants also cite section 17-1-111, in support of their contention that only statutory or constitutional claims are worthy of court review, that statute simply states that the provisions of Title 17 "relating to the placement, assignment, management, discipline, and classification of inmates" are not subject to thе Administrative Procedure Act. It does not purport to preclude courts from reviewing common law tort claims such as those asserted in this lawsuit.
2.
We also disagree with defendants' contention that the General Assembly would not have had to include common law tort claims in section 18-17.5-102.8(1) because such claims would necessarily be barred under section 24-10-106(1.5)(a), C.R.S.2007, which preserves sovereign immunity for tort claims brought by claimants "who have been convicted of a crime and incarcerated in a correctional facility or jail pursuant to such conviction."
Initially, we note defendants' statement that they are raising their governmental immunity argument simply for the purpose of refuting plaintiffs' statutory interpretation, and that they did not raise governmental immunity in the trial court because they "wanted to avoid discovery" on sovereign immunity issues. We agree that the issue of defendants' potential immunity under the Colorado Governmental Immunity Act, see-tions 24-10-1011 to -120, C.R.S.2007, must initially bе decided in the trial court, and that defendants will have the opportunity to raise that issue on remand.
For purposes of the issue before us, however, we conclude that the potential availability of governmental immunity does not warrant reading into section 18-17.5-102.3(1) a requirement that inmates exhaust administrative remedies before bringing a common law tort action against the facility in which they are confined and against its employees.
First, there is no reference whatever in the legislative history of section 18-17.5-102.8(1) to governmental immunity as a potential bar to inmates' common law claims. Second, even if the General Assembly had assumed that governmental immunity would bar claims against DOC, there is nothing to indicate that it would have made a similar assumption regarding tort claims asserted against a private prison housing inmates pursuant to a contract with DOC. Third, the CGIA would not bar claims against correctional facility employees whose conduсt was willful and wanton, as is alleged in this case. See § 24-10-118(2)(a), C.R.S.2007; Nieto,
3.
Nor are we persuaded by defendants' argument that giving effect to the plain language of section 18-17.5-102.8(1) would defeat the General Assembly's intent in enacting the statute.
Section 183-17.5-101, C.R.98.2007, states:
(1) The general assembly declares that the state has a strong interest in limiting substantially frivolous, groundless, or vexatious inmate lawsuits that impose an undue burden on the state judicial system. While recognizing an inmate's right to access the courts for relief from unlawful stаte actions, the general assembly finds that a significant number of inmates file substantially frivolous, groundless, or vexatious lawsuits.
(2) The general assembly, therefore, determines that it is necessary to enact legislation that promotes efficiency in the disposition of inmate lawsuits by providing forpreliminary matters to be determined by magistrates and to provide for sanctions against inmates who are allowed to file claims against public defendants and whose claims are dismissed as frivolous.
While these provisions reflect the General Assembly's intent to limit frivolous, groundless, or vexatious inmate lawsuits, the legislative history of section 18-17.5-102.8(1) shows that the General Assembly carefully considered and delineated the extent to which inmate lawsuits would be limited.
For example, section 183-17.5-102.8(1) as originally drafted would have precluded inmates from bringing a civil action "based upon prison conditions under any state statute or constitutional provision" without exhausting administrative remеdies (emphasis added). However, the General Assembly deleted the word "state" because it recognized that many inmate lawsuits were based on federal statutes as well as state statutes. See Hearings on H.B. 1079 before the House Jud. Comm., 61st Gen. Assemb., 2d Sess. (Jan. 20, 1998). In 2001, an amendment to section 18-17.5-102.3(1) was proposed that would have removed the phrase "based upon prison conditions under any statute or constitutional provision." The amendment was not adopted. See Hearings on H.B. 1226 before the Senate Jud. Comm., 63d Gen. Assemb., 1st Sess. (Mar. 7 & 12, 2001); Senate Journal 539, 63d Gen. Assemb., ist Sess. (Mar. 14, 2001) (reinserting language that amendment proposed to delete).
More important, as discussed below, plaintiffs would have been able to assert their claims at common law without first exhausting administrative remedies. Our supreme court has repeatedly directed courts to use particular care in interpreting a statute to abrogate the common law when the statute does nоt expressly do so. See Robbins v. People,
Because section 18-17.5-102.8(1) does not by its plain languаge evidence a legislative intent to abrogate plaintiffs' common law right to assert their claims without exhaustion of administrative remedies, we may not read the statute to do so. While that principle might potentially be deemed inapplicable if giving effect to the statute as written would produce an absurd result, see Kauntz v. HCA-Healthone, LLC,
In sum, we conclude that section 18-17.5-102.3(1) does not apply to common law tort claims, and that the trial court erred in construing it to the contrary.
C.
We are similarly unpersuaded by defendants' contention that we may uphold the trial court's ruling on other grounds because, "even if the statute did not require plaintiffs to exhaust their remedies, the common law did."
[6] At common law, parties seeking relief in the courts are generally required to exhaust available administrative remedies before they may do so. See Horrell v. Depart
Here, the administrative remedy that plaintiffs would assertedly have been required to exhaust is that provided under DOC Admin. Reg. No. 850-04, which sets forth a grievance procedure for resolving inmate complaints. However, while the regulation states that it may afford remedies such as modification of the institutional policy, restoration of or restitution for property, or assurance that abuse will not recur, it further provides: "DOC employee, contract worker, or volunteer discipline/reprimand, damages for pain and suffering, and exemplary or punitive damages are not remedies available to offenders." DOC Admin. Reg. No. 850-04(III)(I).
Thus, because the administrative remedies available under DOC Admin. Reg. No. 850-04 would not include the relief sought by plaintiffs in this lawsuit, plaintiffs would not have been required at common law to exhaust those remedies.
The common law exceptions to the exhaustion doctrine have been limited or eliminated in prison litigation when a statute evidences a legislative intent to do so. See Booth v. Churner,
In contrast to the broadly worded PLRA, section 18-17.5-102.3(1) does not apply to common law tort claims. Accordingly, those claims would remain subject to the common law rule, which would not have required exhaustion of administrative remedies in this case because the available remedy was "ill-suited for providing the relief sought." Hor-yell,
IL.
In its order, the trial court also ruled that plaintiffs' claim for punitive damages had to be "dismissed at this time" because it was premature under section 18-21-102(1.5)(a), C.R.S.2007. That statute provides that a claim for exemplary damages may not be included in any initial claim for relief, but may be added by amendment after the exchange of initial C.R.C.P. 26 disclo
However, we do not agree with defendants that plaintiffs are barred from subsequently seeking punitive damages for the reason that such damages are available only pursuant to statute and thus fall within the exhaustion requirement of section 13-17.5-102.3(1).
Although section 18-17.5-102.8(1) requires exhaustion prior to bringing "a civil action based upon prison conditions under any statute or constitutional provision," plaintiffs could not bring a "civil action," as that term is defined in section 18-17.5-102(1), C.R.S. 2007, for punitive damages alone. See Ress v. Rediess,
Plaintiffs' civil action here seeks to vindicate rights based in the common law. Section 18-17.5-102.3(1) neither precludes plaintiffs from bringing such an action nor bars them from subsequently renewing their request for punitive damages if the prerequisites for such a request are met.
IIL
Defendants also argued in the trial court that the assault and battery claims of some of the plaintiffs should be dismissed for failure to state a claim, because those plaintiffs failed to allege that any defendant used physical force against them. Although the trial court did not address this argument, defendants contеnd on appeal that we should uphold, on this alternative basis, the judgment of dismissal of the assault and battery claim as to those plaintiffs who did not allege that defendants touched them. We disagree.
A motion to dismiss for failure to state a claim under C.R.C.P. 12(b)(5) is properly granted when the plaintiff's factual allegations cannot support a claim as a matter of law. BRW, Inc. v. Dufficy & Sons, Inc.,
A complaint need not express all facts that support the claim, but need only serve notice of the claim asserted. In addition, the allegations of the complaint must be viewed in the light most favorable to the plaintiff. Id.
To establish assault, the following elements must be proved: (1) the defendant acted either with the intent of making a contact with the person of the plaintiff or with the intent of putting the plaintiff in apprehension of suсh a contact; (2) the plaintiff was placed in apprehension of an imminent contact with his or her person by the conduct of the defendant; and (8) such contact was or appeared to be harmful or offensive. The elements of battery are similar, except that the contact must have actually resulted. Bohrer v. DeHart,
Plaintiffs alleged in their amended complaint that the conduct described in paragraphs 21 through 27 of the complaint constituted an assault and battery on them. Paragraphs 21 through 27 alleged, as pertinent here, that plaintiffs were ordered to lie face down on the ground and "were handcuffed at the wrists by plastic ratcheted tie cuffs that were pulled so tight that the cuffs cut into the skin and caused inmates' hands to become numb"; that if an inmate complained of pain, the cuffs would be ratcheted tighter; that inmates in flooded cells were dragged
Although other рaragraphs of the amended complaint described specific injuries suffered by individual plaintiffs-for example, being shot with pellets or rubber bullets while trying to leave their burning units-the allegations set forth above were sufficient to state a claim for assault and battery as to all the plaintiffs. Thus, this claim was not subject to dismissal under C.R.C.P. 12(b)(5).
The judgment is affirmed to the extent it dismisses plaintiffs' punitive damages claim as premature. The judgment is otherwise reversed, and the case is remanded for further proceedings consistent with the views set forth here.