H. B. 2872

(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
[Introduced February 23, 1999; referred to the
Committee on the Judiciary then 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 prisoner litigation reform; filing fees; court costs; dismissal of actions; affidavit of inability to pay costs; court determination that action is frivolous or malicious; hearing; partial payment and loss of earned good time credits.

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 as follows:
ARTICLE 1A. PRISONER LITIGATION REFORM.
§25-1A-1. Filing fees; court costs; payment beyond legal requirement; dismissal of actions; access to courts.
(a) For purposes of this section, the term "prisoner" is defined as any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release or diversionary program. 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 appeal 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 shall be required to pay the full amount of a filing fee. The court shall assess and collect as a partial payment of any court fees required by law, an initial partial filing fee of twenty percent of the preceding three months of income credited to the prisoner's trust account administered by the division of corrections. After payment of initial partial filing fee, the prisoner shall be required to make monthly payments of twenty percent of the preceding month's income credited to the prisoner's trust account. The division of corrections shall forward payments from the prisoner's trust account to the clerk of the court each time the amount in the account exceeds ten dollars until the filing fees are paid.
At the time of bringing a civil action or appeal, the prisoner must file a certified copy of his or her trust account with the clerk of the court. The certified copy of the trust account shall reflect 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 appeal 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 shall be required to pay all actual court costs. The court shall assess and collect as an initial payment of court costs twenty percent of the preceding three months' average monthly income for the prisoner's trust account administered by the division of corrections. After an initial payment of court costs, the prisoner shall be required to make monthly payments of twenty percent of the preceding month's income for the account. The division of corrections shall forward payments from the prisoner's trust account to the clerk of the court until the actual court costs are paid in full.
(c) A prisoner may authorize payment beyond that required by this section.
(d) The court may dismiss any civil action or appeal 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 or her civil action or appeal if he or she is found to be indigent pursuant to subsection (a), section two of this article at the time the civil action or appeal is brought.
§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.
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 the 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, property owned, cash or checking accounts, savings accounts, retirement and pension accounts, annuities, trust funds where a beneficiary, dependents, debts and monthly expenses. If the party is a prisoner as defined in subsection (a) of this article, he or she shall also state the amount of money deposited in his or her prisoner trust account for the last six months and attach to the affidavit a certified copy of the trust account statement for the preceding six 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 by law.
(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 that:
(1) The allegation of poverty is false; or
(2) The action or a portion of the action is frivolous or malicious.
(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 claim.
(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 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 or detained to file under oath a report concerning the action prior to determination of a motion to proceed without paying costs;
(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 article.

§25-1A-3. Loss of earned good time credits.

In any case, whether filed in state, federal or administrative court, in which the prisoner, as defined in subsection (a), section one of this article, 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. The 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.

NOTE: The purpose of this bill is to impose stricter requirements upon prisoners concerning their filing and prosecution of lawsuits.

This article is new; therefore, strike-throughs and underscoring have been omitted.