Colorado: When Suing Private Prison under Common Law Tort, Exhaustion of Administrative Remedies Not Required

The Colorado Court of Appeals held that prisoners in a private for-profit prison could sue the prison company, in a common law tort action, for nefarious acts of its employees during a 2004 riot without having first exhausted administrative remedies, because the remedies they sought were not available under the prison’s administrative regulations or required by state law.

Eighty-five injured prisoners sued Corrections Corp. of America (CCA), owner and operator of the Crowley County Correctional Facility in Olney Springs, Colorado under contract with the Colorado Dept. of Corrections. The prisoners filed suit under Colo. Rev. Stat. § 13-17.5-102.3(1) (2007) in 2005 and 2006 in Crowley County District Court, seeking compensatory and punitive damages. Their common law tort claims included negligence, assault and battery, outrageous conduct and civil conspiracy.

The district court dismissed the complaints for failure to exhaust administrative remedies and dismissed the punitive damages demand as premature. On appeal, the plaintiffs argued that while exhaustion would normally be required, it was unnecessary in this case because the only claims brought were common law tort claims, for which there was no administrative remedy.

State law requires prisoners bringing “a civil action based upon prison conditions under any statute or constitutional provision” to first exhaust administrative remedies. But the prisoners did not sue under any “statute or constitutional provision.” Rather, they relied upon claims based on common law (i.e., law derived from court decisions rather than from statutes or constitutions).

The appellate court recognized the legislative intent apparent from “omitting” any mention of common law in the statute, citing Colorado precedent holding that it “should not construe [such] [o]missions by the General Assembly as unintentional.” Importantly, the court held that the statute “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.”

The defendants proffered many counterarguments, all of which were rejected by the court. They suggested that only statutory or constitutional claims rise to the level of being worthy of court consideration – essentially dismissing the concept of common law as archaic. Next, they argued that § 24-10-106(1.5)(a), C.R.S. 2007, under a sovereign immunity umbrella, bars common law claims brought by convicted prisoners. But this argument was not raised in the trial court, and thus was not ripe on appeal. Nonetheless, the court opined that the argument was not well taken, based on precedent.

The appellate court also rejected the defendants’ suggestion, which relied on a different statute that disfavored frivolous or vexatious prisoner lawsuits, that the court’s proposed interpretation of § 13-17.5-102.3(1) in effect defeated the General Assembly’s intent in enacting the frivolous lawsuit statute. Yet parsing that statute’s history showed that it, too, was grounded in “prison conditions under any state statute or constitutional provision,” which was outside common law tort actions.

As to the defendants’ attempt to graft an administrative exhaustion requirement onto common law, the court declined to adopt that approach – particularly where, as here, it would tend to insulate private prison companies from willful and wanton misconduct.

Next, the defendants tried to have the battery claims dismissed for failure to state a claim.
But the appellate court noted the record, which declared that the prisoners were handcuffed with self-tightening cuffs that caused their hands to go numb; were dragged by the ankles through flooded cells contaminated with feces, blood and broken glass; and were shot with pellets while trying to leave burning units. All of this, the court held, easily stated a claim for assault and battery.

Finally, while agreeing with the lower court that the punitive damages claims were premature, the Court of Appeals reversed the dismissal and remanded for further proceedings. See: Adams v. Corrections Corp. of America, 187 P.3d 1190 (Colo. Ct. App. 2008). The prisoners are represented by PLN board member Bill Trine, Cheryl Trine of Trine and Metcalf, and Adele Kimmel of Public Justice.

Additional source: Pueblo Chieftain

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