H. B. 2806(By Delegates Perry, Moore, Barill, Campbell,
Pino, Staggers, Morgan and Poling, M.)
(Originating in the Committee on the Judiciary)
[March 29, 2013]
A BILL to amend and reenact §25-1A-2 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §25-1A-2a, all relating generally to exhaustion of administrative remedies for prisoners; defining certain administrative remedies; directing proposal of rules for legislative approval; complying with federal sexual abuse provisions; and requiring that a prisoner first exhaust such remedies prior to resorting to litigation.
Be it enacted by the Legislature of West Virginia:
That §25-1A-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §25-1A-2a, all to read as follows:
ARTICLE 1A. WEST VIRGINIA PRISONER LITIGATION REFORM ACT.
§25-1A-2. Exhaustion of ordinary administrative remedies.
(a) As used in this section, an “ordinary administrative remedy” is a formal administrative process by which an inmate submits a grievance seeking redress or presenting concerns regarding any general or particular aspect of prison life which does not involve violence or sexual abuse against an inmate. An ordinary administrative remedy includes, but is not limited to, complaints concerning food quality, health care, appeals of prison discipline, physical plant, classification, staff treatment or some other alleged wrong.
(b) The Commissioner of the Division of Corrections and the Executive Director of the Regional Jail Authority are authorized to establish procedures for ordinary administrative remedies according to their respective authority for issuance of policies governing the conduct of inmates.
(c) An inmate may not bring a civil action regarding an ordinary administrative remedy until the procedures promulgated by the agency have been exhausted.
(d) An ordinary administrative remedy is considered exhausted when the inmate’s grievance complies with duly promulgated rules and regulations regarding inmate grievance procedures, has been accepted, fully appealed and has received a final decision from the Commissioner of Corrections or the Commissioner’s designee, or the Executive Director of the Regional Jail Authority, or the Director’s designee.
(e) The agency shall issue a final decision regarding an ordinary administrative remedy no later than sixty days from the date the inmate filed his or her initial grievance. Computation of the sixty-day time period shall not include time consumed by inmates in preparing any administrative appeal. The agency may claim an extension of time to issue a final decision regarding an ordinary administrative remedy of up to thirty days if the sixty day final decision time frame is insufficient to make an appropriate decision. The agency shall notify the inmate in writing of any such extension and provide a date by which the final decision regarding an ordinary administrative remedy will be made.
§25-1A-2a. Exhaustion of administrative remedies which address sexual abuse.
(a) The agency shall not require an inmate to use any informal grievance process, or to otherwise attempt to resolve with staff, an alleged incident involving sexual abuse against an inmate. The agency shall ensure that:
(1) An inmate who alleges an incident involving sexual abuse may submit a grievance without submitting it to a staff member who is the subject of the complaint; and,
(2) Such grievance may not be referred to a staff member who is the subject of the complaint.
(b)The agency shall issue a final agency decision on the merits of any portion of a grievance within 60 days of the initial filing of the grievance. Computation of the 60 day time period shall not include time consumed by inmates in preparing any administrative appeal. The agency may claim an extension of time to respond, of up to 30 days, if the normal time period for response is insufficient to make an appropriate decision. The agency shall notify the inmate in writing of any such extension and provide a date by which a decision will be made.
(c) At any level of the administrative process, including the final level, if the inmate does not receive a response within the time allotted for reply, including any properly noticed extension, the inmate may consider the absence of a response to be a denial at that level.
(d) Third parties, including fellow inmates, staff members, family members, attorneys, and outside advocates, shall be permitted to assist inmates in filing requests for administrative remedies relating to incidents involving sexual abuse, and shall also be permitted to file such requests on behalf of inmates. If a third party files such a request on behalf of an inmate, the facility may require as a condition of processing the request that the alleged victim agree to have the request filed on his or her behalf, and may also require the alleged victim to personally pursue any subsequent steps in the administrative remedy process. If the inmate declines to have the request processed on his or her behalf, the agency shall document the inmate’s decision.
(e) After receiving an emergency grievance alleging an inmate is subject to a substantial risk of sexual abuse, the agency shall immediately forward the grievance, or any portion thereof that alleges the substantial risk of sexual abuse, to a level of review at which immediate corrective action may be taken, shall provide an initial response within 48 hours, and shall issue a final agency decision within 5 calendar days. The initial response and final agency decision shall document the agency’s determination whether the inmate is in substantial risk of sexual abuse and the action taken in response to the emergency grievance.
(f) The agency shall establish procedures for processing an inmate grievance which alleges imminent violence. The commissioner and the executive director shall, by December 31, 2013, propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to meet the requirements of this subsection.
(g) An administrative remedy for an allegation of violence or sexual abuse against an inmate is considered exhausted when the inmate’s grievance has complied with duly promulgated rules and regulations regarding inmate grievance procedures for imminent violence or sexual abuse, has been accepted, fully appealed and has received a final decision from the Commissioner of Corrections or the Commissioner’s designee, or the Executive Director of the Regional Jail Authority, or the Director’s designee.
(h) The agency may discipline an inmate for filing a grievance related to sexual abuse only where the agency demonstrates that the inmate filed the grievance in bad faith.
(i) Notwithstanding any other provision of this code, no inmate shall be prevented from filing an appeal of his or her conviction or from bringing a civil or criminal action alleging violence or sexual abuse, after exhaustion of administrative remedies. If such a civil or criminal action is ultimately dismissed by a judge as frivolous, then the inmate shall pay the filing costs associated with the civil or criminal action as provided for in this article.