HB2132 INTR

H. B. 2132

(By Delegates Manuel, Michael, Ashley and Leach)

[Introduced Janaury 13, 1999; referred to the

Committee on the Judiciary.]

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 providing 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 as follows:

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 the account. The division of corrections shall withdraw moneys maintained in the 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 the 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 full.

(c) Nothing in this section may be construed to prohibit a prisoner from authorizing payment beyond that required by this section.

(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 or her action or proceeding if he or she 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 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 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 by law.

(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 that:

(1) The allegation of poverty is false; or

(2) The action or a portion of the 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 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 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 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. In the absence of 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 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.

(a) Authority. --

(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. The 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. The 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-nine, is 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.

(b) Effect. --

(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.

This administrative remedy procedure shall be filed with the secretary of state and published in the state register.

(d) Definitions. --

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 the 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 is prepared in anticipation of litigation and are confidential and not subject to discovery by the prisoner in any civil action which may follow his or her 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 the procedure.

(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 and shall be suspended upon the filing of the complaint or grievance and shall continue to be suspended until the decision rendered under the provisions of this section is final.

§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-nine 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 corrections.

(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 the 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.