Senate Bill No. 109

(By Senators Tomblin (Mr. President) and Sprouse
By Request of the Executive)
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[Introduced January 17, 2000; referred to the Committee on the Judiciary; and then to the Committee on Finance.]
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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; defining terms; mandatory exhaustion of administrative remedies; filing fees; court costs; judicial review of initial pleading; dismissal of actions; hearings; limitation on recovery; loss of good-time credit; limitation upon number of civil actions; and court- ordered payments and attorney fees.

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. WEST VIRGINIA PRISONER LITIGATION REFORM ACT.
§25-1A-1. Definitions.
As used in this article,
(a) "Prisoner" means any person confined in any jail, prison, correctional facility, work release, juvenile detention center or other juvenile 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.
(b) "Facility" means all county jails, regional jails, and facilities operated by the division of corrections and division of juvenile services.
(c) "Civil action" means all actions or appeals thereto filed by any prisoner, or their personal representative, presently or formerly, confined in any jail, prison or other correctional facility with respect to prison conditions, including but not limited to petitions for extraordinary writs, civil actions under 42 U.S.C. § 1983 and other federal and state laws, and negligence actions. Petitions which exclusively concern a prisoner's sentence or conviction are not subject to the requirements of this article.
§25-1A-2. Mandatory exhaustion of administrative remedies.
No civil action, as defined in this article, shall be brought by any prisoner, or their personal representative, presently or formerly, confined in any jail, prison or other correctional facility until such administrative remedies as are available are exhausted. Failure to adopt or adhere to an administrative grievance procedure does not constitute a basis for a civil action under this article.
§25-1A-3. Payment of filing fees and court costs.
(a) Notwithstanding any other provision of this code, no prisoner shall be allowed to file with any court of this state, nor shall any court accept for filing, a civil action, as defined in this article, without the payment of filing fees as set forth in this section.
(b) Whenever a prisoner files with the clerk of any court of this state a civil action, the clerk 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 the initial partial filing fee, the prisoner shall 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. No civil action, as defined in this article, shall be accepted by such clerk unless it is accompanied by a certified copy of the prisoner's trust account statement which reflects the prisoner's balance as of the date the prisoner seeks to file the civil action.
(1) Notwithstanding any other provision of this code, prisoners shall be required to pay all actual court costs for any civil action in which the prisoner does not substantially prevail on the merits. No settlement between a prisoner and an opposing party may be considered an instance of the prisoner having substantially prevailed.
(2) Upon a determination that the prisoner did not substantially prevail, the court shall assess and collect, as an initial payment of court costs, twenty percent of the preceding three months of income credited to 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 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 court costs are paid.
(3) As part of the actual court costs associated with any civil action, the court shall assess as court costs all fees paid by the state to court appointed counsel. The court shall also tax as costs to a civil action the costs of transporting the prisoner to all hearings, including mileage and hourly wages of all correctional officers transporting such prisoner, and the costs of complying with any discovery demands made by a prisoner upon an opposing party. All court costs assessed by the state shall have the same force and effect as a judgment against a prisoner and may be enforced by the state in the same manner as other judgments.
(d) Upon a finding by the court that a prisoner is indigent and does not possess sufficient funds in his or her inmate account to make any required payment, the court may suspend the prepayment requirement for filing fees. However, the court shall still assess court costs as set forth in subsection (c) of this section. Prisoners seeking to file as an indigent must file with the court an affidavit that he or she is unable to pay the filing fee or give security therefore. The affidavit shall contain complete information as to the prisoner's identity, nature and amount of income (including income for work while incarcerated), spouse's income, property owned, cash, bank accounts, retirement and pension accounts, annuities, trust funds where a beneficiary, dependents, debts and monthly expenses. The prisoner 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 court may not find that the inmate is indigent if it appears that the inmate possess or will possess sufficient funds in his or her account to pay the filing fees as set forth in this section. The court, in its discretion, may also decline to find the prisoner is indigent, if it appears that the prisoner is deliberately preventing his or her inmate account from accumulating sums of money that would allow payments to be made.
(e) If the court subsequently determines that a prisoner falsely represents his or her status as indigent, it may dismiss the action. A court may also subsequently determine that an inmate is no longer indigent and, upon such determination, shall order payment of filing fees.
§25-1A-4. Judicial review of initial pleading, dismissal.
(a) The court shall, prior to issuance of process, review the complaint, petition or other initial pleading to determine whether the same is frivolous or malicious as defined in subsection (c) of this section, fails to state a claim for which relief can be granted, or seeks monetary relief from a party who is immune from such relief. If the complaint, petition or other initial pleading is frivolous or malicious, fails to state a claim for which relief can be granted, or seeks monetary relief from a party who is immune from such relief, process shall not issue and the case shall be dismissed.
(b) Any defendant may waive the right to reply to any civil action brought by a prisoner. Notwithstanding any other law or rule of procedure, such waiver shall not constitute an admission of the allegations contained in the complaint, petition or other initial pleading. No relief shall be granted to a prisoner unless a reply has been filed. The court may require any defendant to reply to a civil action only if it finds that the prisoner has a reasonable opportunity to prevail on the merits.
(c) A civil action is frivolous or malicious if (i) it has no arguable basis in fact or law, or (ii) is substantially similar to a previous civil action, which the prisoner did not substantially prevail, either in that it is brought against the same parties or in that the civil action arises from the same operative facts of a previous civil action, or (iii) the civil action services to harass an opposing party.
§25-1A-5. Limitation on recovery.
No civil action may be brought by a prisoner for mental or emotional injury suffered while confined in a facility without a prior showing of physical injury.
§25-1A-6. Hearings.
(a) To the extent practicable, in any civil action, as defined in this article, pretrial proceedings in which a prisoner's participation is required or permitted shall be conducted by telephone, video conference, or other telecommunications technology without removing the prisoner from the facility in which a prisoner is confined.
(b) Subject to the agreement of the official with custody over a prisoner, hearings may be conducted at the facility in which a prisoner is confined. To the extent practicable, the court shall allow counsel to participate by telephone, video conference, or other communications technology in any hearing held at the facility.
(c) No court may compel the commissioner of the division of corrections or warden of any correctional facility operated by the division of corrections to transport to court any inmate having a maximum security classification, provided the warden of such facility tenders to the court an affidavit attesting to the custody level of the inmate and stating that, in the warden's opinion, such inmate possess a substantial risk of escape if transported. If a warden files such an affidavit, then the warden shall, upon demand of the court, forthwith provide suitable room to conduct any trial or hearings where a prisoner's presence is required. The warden shall allow the court, counsel and all court personnel access to such facility to conduct such proceedings the court deems necessary.
§25-1A-7. Loss of good time credit.
If a prisoner submits a civil action which is malicious, or one that is intended to harass the party against whom the civil action is brought, or such prisoner testifies falsely or otherwise presents false evidence or information to the court, a court may order that a prisoner suffer a loss of earned good time credit. The earned good time credit shall be deducted by the officials having custody of a prisoner upon a court finding that a prisoner submitted a civil action which was malicious, or that is intended solely to harass a party against whom the civil action is brought, or such prisoner testified falsely or otherwise presented false evidence or information to the court. A court may take additional evidence or hold any hearing necessary to determine what is an appropriate amount of good time credit to be deducted.
§25-1A-8. Limitation upon number of civil actions.
If a court finds that a prisoner has previously filed three civil actions in any court of this state, following the effective date of this article, wherein such civil actions were dismissed as frivolous or malicious, or failed to state a claim for which relief can be granted, then the court shall dismiss all further civil actions at any stage of the proceedings unless it appears that such action is necessary to prevent the prisoner from suffering imminent serious physical harm or injury. In the event that the court determines that such action is necessary to prevent the prisoner from suffering imminent serious physical harm or injury, such action shall be limited to preventing a prisoner from suffering imminent serious physical harm or injury.
§25-1A-9. Court ordered payments.
Any compensatory damages awarded to an inmate in connection with a civil action brought against any facility or against any official or agent of a facility, after deduction for any attorney fees, shall be paid directly to satisfy any outstanding court- ordered payments pending against the prisoner, including but not limited to, restitution or child support. The remainder of the award after full payment of all pending court orders shall be forwarded to the inmate.
§25-1A-10. Attorney fees.
(a) In any action based upon prison conditions brought under any statute or constitutional provision, if attorney fees are recoverable pursuant to any state statute, no attorney fees shall be awarded to a prisoner, except to the extent that:
(1) The fees were directly and reasonably incurred by an attorney in proving an actual violation of prisoner's rights protected by the constitution or statute; and
(2) The amount of the fees is proportionately related to the court-ordered relief for the violation, or the fees were directly and reasonably incurred in enforcing the relief ordered for the violation.
(b) Nothing in this section shall prohibit a prisoner from entering into an agreement to pay an attorney fee in excess of the amount authorized in this section, if the fee is paid by the prisoner rather than by another party to a civil action.

NOTE: The purpose of this bill is to control the growing cost of prisoner litigation related to conditions against the state and counties by requiring prisoners to pay filing fees and costs and allowing for dismissal of complaints when frivolous or malicious. The bill imposes specific requirements for the filing and prosecution of claims by prisoners regarding prison conditions.

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