Senate Bill No. 341
(By Senators Blatnik, Craigo, Helmick, Love,
Wiedebusch, Yoder, Bowman, Ross, Sharpe, Dittmar,
Walker, Buckalew and Schoonover)
[Introduced February 8, 1996;
referred to the Committee on the Judiciary;
and then to the Committee on Finance.]
A BILL to amend chapter twenty-five of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article one-a, relating to
disincentives to frivolous or malicious inmate litigation;
filing fees and court costs; dismissal of actions; affidavit
of inability to pay costs; determination that action is
frivolous or malicious; hearing; partial payment; loss of
earned good-time credits; administrative remedy procedure;
judicial review; sovereign immunity; and cost setoff.
Be it enacted by the Legislature of West Virginia:
That chapter twenty-five of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article one-a, to read
ARTICLE 1A. DISINCENTIVES TO FRIVOLOUS INMATE LITIGATION.
§25-1A-1. Filing fees; court costs; payment beyond legal
requirement; subsequent dismissal of actions; no prohibition
on access to courts.
(a) Notwithstanding the provisions of section four, article
four-a, chapter fifty three; and section thirty-six, article one
and section one, article two, both of chapter fifty-nine, all of
this code, if a prisoner, defined for purposes of this section as
a person who has been convicted of a crime and is incarcerated
for that crime or is being held in custody pending trial or
sentencing, brings a civil action or proceeding pursuant to
section four, article four-a, chapter fifty three; section
thirty-six, article one or section one, article two, both of
chapter fifty-nine, all of this code, on filing the court shall
order the prisoner to pay as a partial payment of any filing or
other fees required by law a first-time payment of twenty percent
of the preceding three month's income for the prisoner's trust
account administered by the division of corrections and
thereafter monthly payments of ten percent of the preceding
month's income for said account. The division of corrections shall withdraw moneys maintained in said account for payment of
court fees and shall forward the moneys collected at such times
as the moneys exceed ten dollars to the appropriate court clerk
or clerks until the actual court fees are paid in full.
The prisoner must file a certified copy of his or her trust
account with the court that reflects the prisoner's balance at
the time the complaint is filed.
(b) Notwithstanding the provisions of section four, article
four-a, chapter fifty three; and section thirty-six, article one
and section one, article two, both of chapter fifty-nine, all of
this code, if a prisoner brings a civil action or proceeding
pursuant to section four, article four-a, chapter fifty three;
section thirty-six, article one or section one, article two, both
of chapter fifty-nine, all of this code, the prisoner is
responsible for the full payment of actual court costs and the
court shall order the prisoner to pay a partial first-time
payment of twenty percent of the preceding three month's average
monthly income for the prisoner's trust account administered by
the division of corrections and thereafter monthly payments of
ten percent of the preceding month's income for said account.
The division of corrections shall withdraw the moneys maintained in the prisoner's trust account for payment of court costs and
shall forward quarterly the moneys collected to the appropriate
court clerk or clerks until the actual court costs are paid in
(c) Nothing in this section may be construed to prohibit a
prisoner from authorizing payment beyond that required by this
(d) The court may dismiss any civil action in which the
prisoner has previously failed to pay fees and costs assessed
under this section.
(e) Nothing in this section may be construed to prohibit an
applicant from filing his action or proceeding if he is found to
be indigent pursuant to subsection (a), section two of this
article at the time the action or proceeding is initiated.
§25-1A-2. Affidavit of inability to pay costs; requirements of
same; dismissal of action upon certain findings;
determination that action is frivolous or malicious;
hearing; partial payment order.
(a) Requirements of affidavit.
(1) Any court of the state of West Virginia may authorize
the commencement, prosecution or defense of any suit, action or proceeding without prepayment of fees and costs or security
therefor, by a person who makes affidavit that he or she is
unable to pay such costs or give security therefor. The
affidavit shall contain complete information as to the party's
identity, nature and amount of income, spouse's income if
available to the party, property owned, cash or checking
accounts, dependents, debts and monthly expenses. If the party
is a prisoner, defined for purposes of this section as a person
who has been convicted of a crime and is incarcerated for that
crime or is being held in custody for trial or sentencing, he or
she shall also state the amount of money deposited in his or her
prisoner trust account for the last three months. The affidavit
shall contain the following statements: "I am unable to pay the
court costs. I verify that the statements made in this affidavit
are true and correct." The affidavit shall be sworn as required
(2) The attorney general may receive information from the
prison or jail verifying the financial information given by the
prisoner pursuant to subdivision (1), of this subsection.
(b) Dismissal of action.
A court in which an affidavit of inability to pay has been filed may dismiss the action in whole or in part on a finding
(1) The allegation of poverty is false; or
(2) The action or a portion of the action is frivolous or
(c) Determination that action is frivolous or malicious.
In determining whether an action is frivolous or malicious,
the court may consider whether:
(1) The claim has no arguable basis in law or fact; or
(2) The claim is substantially similar to a previous claim
either in that it is brought against the same parties or in that
the claim arises from the same operative facts as a previous
(d) Court hearings.
In determining whether the allegation of poverty is false or
if the action is frivolous or malicious, the court is authorized
to hold a hearing before or after service of process on its own
motion or on the motion of a party.
(1) If the plaintiff is a prisoner as defined in subdivision
(1), subsection (a) of this section:
(A) The court is authorized to hold the hearing at the jail or prison. The court is authorized to appoint a master for the
purpose of conducting a hearing and filing findings and
recommendations with the court;
(B) The court, in lieu of a hearing, may request the
director of the jail or prison in which the prisoner is
incarcerated to file under oath a report concerning the action
prior to determination of a motion to proceed without paying
(C) The court or master may request the jail or prison to
furnish information on the daily balance in the prisoner's trust
account for the previous three months;
(D) The court or master may require the prisoner to file a
statement under oath that the claim has not been previously
brought against the same parties or from the same operative facts
in any state or federal court;
(E) The court may develop a form questionnaire which it may
require by local rule to be filed to implement this statute.
(2) The court may enter an order dismissing the entire
action or a portion of the action before or after service of
process. If a portion of the action is dismissed, the court
shall also designate the issues and defendants on which the action is to proceed without payment costs. This order is not
subject to an interlocutory appeal.
(e) Partial payment order.
If the court authorizes the commencement of the action and
the court concludes, based on information contained in the
affidavit or other information available to the court, that such
person is able to pay part of the fees, costs or security
otherwise required, then the court shall order a partial payment
to be made as a condition of the commencement, or further
prosecution of the action: Provided, That any such payment is
not less than required under subsection (a), section one of this
§25-1A-3. Loss of earned good time credits.
In any case, whether filed in state, federal or
administrative court, in which the prisoner submits a malicious
claim, or one that is intended solely to harass the party filed
against, or testifies falsely or otherwise presents false
evidence or information to the court, the prisoner shall suffer
a loss of earned good time credits. Such earned good time
credits may be deducted upon the court's finding that the
prisoner has submitted a malicious claim, or one that is intended solely to harass the party filed against, or upon the court's
finding that the prisoner has testified falsely or otherwise
presented false evidence or information to the court or committed
a fraud upon the court. In the absence of such a finding by the
court and upon review and recommendation by the attorney general,
a disciplinary hearing may be held to determine whether the
prisoner has filed a malicious claim, or one that is intended
solely to harass the party filed against, or has testified
falsely or otherwise presented false evidence or information to
the court or in deposition or in a notarized statement. Upon
such a finding after a disciplinary hearing, the prisoner's
earned release credits may be revoked.
§25-1A-4. Corrections and administrative remedy procedure;
adoption; effect; publication of procedure;
definitions; notice; commencement of review; records;
confidentiality; judicial review.
(1) The division of corrections and each sheriff and
regional jail administrator is hereby authorized to adopt an
administrative remedy procedure at each of its adult
institutions, in compliance with Section 1997e of Title 42 of the
United States Code.
(2) The division of corrections, each sheriff and each
regional jail administrator may also adopt administrative remedy
procedures for receiving, hearing, and disposing of any and all
complaints and grievances by prisoners against the state, the
governor, or the division of corrections or any employees or
officials thereof, or any sheriff or regional jail administrator
or employees thereof, which arise while a prisoner is within the
custody or under the supervision of the division, the sheriff or
the regional jail administrator. Such complaints and grievances
shall include, but are not limited to, any and all claims seeking
monetary, injunctive, declaratory, or any other form of relief
authorized by law, and by way of illustration includes actions
pertaining to conditions of confinement, personal injuries,
medical malpractice, time computations, even though urged as a
writ of habeas corpus, or challenges to rules, policies, or
statutes. Such administration procedures, when promulgated,
shall provide the exclusive remedy available to the prisoner for
complaints or grievances governed thereby insofar as federal law
allows. All such procedures, including the prisoner disciplinary
process, promulgated and effected prior to the first day of July,
one thousand nine hundred ninety-six shall be deemed to be the exclusive remedy for complaints and grievances to which they
apply insofar as federal law allows.
(3) The division of corrections and each sheriff and
regional jail administrator may also adopt procedures for
prisoners to discover and produce evidence in order to
substantiate their claims and promulgate rules
governing the recommendations, review, and approval of an award
for monetary relief.
(1) Upon approval of the administrative remedy procedure by
a federal court, as authorized and required by 42 U.S.C.
1997e(c)(1), or as otherwise authorized by law, and the
implementation of the procedure within the division of
corrections or by a sheriff or regional jail administrator, this
procedure shall constitute the administrative remedies available
to prisoners for the purpose of preserving any cause of action
they may claim to have against the state, the division of
corrections or its employees, or a sheriff or regional jail
administrator or the employees thereof.
(2) No state court may entertain a prisoner's grievance or
complaint which falls under the purview of the administrative remedy procedure unless and until the prisoner has exhausted the
remedies as provided in the procedure. If the prisoner has
failed to timely pursue administrative remedies through this
procedure, any petition he or she files shall be dismissed. If
at the time the petition is filed, the administrative remedy
process has not yet been completed, the court shall stay the
proceedings for ninety days to allow for completion of the
procedure and exhaustion of the remedies thereunder.
(c) Publication of procedure.
This administrative remedy procedure shall be filed with the
secretary of state and published in the state register.
For purposes of this section, "prisoner" means a person
serving a sentence for the conviction of a crime or being held in
custody for trial or sentencing.
(e) Notice; commencement of review.
Any prisoner who, on the effective date of this section, is
a plaintiff in a civil action or proceeding naming the state, the
division of corrections or any of its employees, or a sheriff or
regional jail administrator or any employee thereof, as a
defendant or defendants shall be furnished notice, by United States mail, of this section and the fact and date of the
enactment of the administrative remedy procedure, with notice of
service of the prisoner plaintiff to be filed into the court
file. Each prisoner so notified shall, within thirty days of the
mailing of such notice, commence administrative review through
the administrative remedy procedure provided herein of the
complaint which is the subject matter of his or her lawsuit.
Failure to timely institute administrative review of his or her
claim shall be considered a waiver of any rights under this
section and, upon motion of the defendants, supported by notice
filed in the records as provided hereinabove, and defendant's
affidavit that the prisoner has failed to timely institute
administrative review, as required herein, the court shall enter
a judgment of dismissal with prejudice in that cause of action.
(f) Records; confidentiality.
Before any cause of action may be heard in any state or
federal court, administrative remedies must be exhausted under
the procedure authorized by this section. Therefore, in addition
to any other provisions of law providing for the confidentiality
of records of the division of corrections or a sheriff or
regional jail administrator, all reports, investigations, and similar supporting documents prepared by the division or sheriff
or regional jail administrator for purposes of responding to the
prisoner's request for an administrative remedy shall be deemed
to be prepared in anticipation of litigation and are confidential
and not subject to discovery by the prisoner in any civil action
which may follow his request for an administrative remedy. All
formal written responses to the prisoner's request shall be
furnished to the prisoner as a matter of course, as required by
(g) Judicial review.
(1) Any prisoner who is aggrieved by an adverse decision of
the division of corrections or a sheriff or regional jail
administrator rendered pursuant to any administrative remedy
procedures under this section may, within thirty days after
receipt of the decision, seek judicial review of that decision
only in the circuit court wherein the prisoner is held or in the
circuit court having jurisdiction in the county wherein the
defendant or defendants are located. This section does not apply
to the commitment and transfer of juveniles.
(2) The time period within which any suit arising out of any
complaint or grievance filed under the provisions of this section must be instituted shall be suspended upon the filing of such
complaint or grievance and shall continue to be suspended until
the decision rendered under the provisions of this section is
§25-1A-5. Sovereign immunity.
No court of this state, or its political subdivisions, has
jurisdiction to entertain any civil action filed by a prisoner
seeking compensatory relief from the state, its agencies,
officers or employees for injuries suffered while in the custody
of the state, its agencies, its political subdivisions, or their
agencies unless the complaint alleges specific facts from which
the court may conclude that the plaintiff suffered serious
physical injury or the claim is authorized by a federal statute.
Nothing in this section may be construed to prevent courts of
this state or its political subdivisions from entertaining claims
for relief based on federal statutes. For purposes of this
section, the term "prisoner" means any person who has been
convicted of a crime and is incarcerated for that crime or is
being held in custody pending trial or sentencing.
§25-1A-6. Cost setoff.
(a) For fiscal year one thousand nine hundred ninety-seven and thereafter, the director of the state division of corrections
shall establish a per annum cost of incarceration for any person
convicted in a state court and committed to the state division of
(b) This cost of incarceration shall reflect the amount of
dollars the state expended in behalf of the prisoner and shall be
the equivalent to the average cost of one year of incarceration,
and the director shall credit or debit a prorated portion of the
cost of incarceration with respect to any such person
incarcerated for three hundred thirty-four days or fewer in a
given fiscal year.
(c) The calculation of the number of days of incarceration
in a given fiscal year for the purpose of such fee shall include
time served prior to conviction.
(d) The state shall have the right to setoff the cost of
incarceration calculated under subsection (a) of this section at
any time and without prior notice against any claim made by or
monetary obligation owed to a person for whom a cost of
incarceration can be calculated.
NOTE: The purpose of this bill is to provide disincentives
to the filing and prosecution of frivolous or malicious lawsuits
by inmates in the custody of the Division of Corrections or any
sheriff or regional jail administrator.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
This bill is recommended for passage in the 1996 regular
session by the Legislative Oversight Committee on Regional Jails
and Correctional Facility Authority.