ENGROSSED

COMMITTEE SUBSTITUTE

FOR

COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 109

(By Senators Tomblin, Mr. President, and Sprouse,

By Request of the Executive)

____________

[Originating in the Committee on Finance;

reported February 22, 2000.]

____________

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 inmate litigation reform; defining terms; requiring exhaustion of administrative remedies; providing for full payment of filing fees and court costs; requiring judicial review of initial pleading; requiring dismissal of actions; permitting hearings at correctional facilities; limiting recovery; allowing forfeiture of good-time credit; limiting number of civil actions; providing for payment of pending judgments; and limiting 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) "Civil action" means any action or appeal from an action filed by any current or former inmate or his or her personal representative with respect to conditions of confinement, 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. Actions that exclusively concern an inmate's sentence or conviction are not subject to the requirements of this article.
(b) "Correctional facility" means any county jail, regional jail or any facility operated by the division of corrections, the West Virginia Regional Jail and Correctional Facility Authority or division of juvenile services for the confinement of inmates.
(c) "Inmate" means any person confined in a correctional 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 a diversionary program.
§25-1A-2. Mandatory exhaustion of administrative remedies.
An inmate may not bring a civil action until all available administrative remedies are exhausted. A correctional facility which fails 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, an inmate may not file with any court of this state, and a court shall not accept for filing, a civil action without the payment of filing fees as set forth in this section. A clerk of any court of this state shall not accept a civil action for filing unless it is accompanied by a certified copy of the inmate's trust account statement that reflects the balance as of the date the inmate seeks to file the civil action.
(b) Whenever a civil action is filed with the clerk of any court of this state, 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 average monthly balance in the inmate's trust account for the three-month period immediately preceding the filing of the action. After payment of the initial partial filing fee, the official responsible for administering the inmate's trust account shall forward payments to the clerk of the court each time the amount in the account exceeds ten dollars until the fees are paid in full.
(c) Notwithstanding any other provision of this code, inmates shall pay all court costs for any civil action in which the inmate does not substantially prevail on the merits. For the purposes of this subsection, an inmate who enters into a settlement of his or her action will not be considered a substantially prevailing party unless the settlement provides otherwise.
(1) Upon a determination that the inmate did not substantially prevail, the court shall assess court costs and the costs shall be collected in the same manner as is provided for filing fees under subsection (b) of this section.
(2) The court shall assess as court costs all fees paid by the state to court-appointed counsel. The court shall also assess as costs the cost of transporting the inmate to all proceedings, including mileage and the wages of all correctional officers transporting the inmate, and the costs of complying with any discovery demands made by an inmate upon an opposing party.
§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 a civil action 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, the court shall not issue process and shall dismiss the case.
(b) Any defendant may waive the right to reply to any civil action brought by an inmate. Notwithstanding any other law or rule of procedure, the waiver shall not constitute an admission of the allegations contained in the complaint, petition or other initial pleading. The court shall not grant relief to an inmate unless a reply has been filed. The court may require any defendant to reply to a civil action only if it finds that the inmate has a reasonable opportunity to prevail on the merits.
(c) A civil action is frivolous or malicious if it: (i) Has no arguable basis in fact or law; (ii) is substantially similar to a previous civil action in which the inmate 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) is intended to harass an opposing party.
§25-1A-5. Limitation on recovery.
An inmate may not bring a civil action for mental or emotional injury suffered while confined in a correctional facility without a prior showing of physical injury.
§25-1A-6. Hearings.
(a) To the extent practicable, a court shall conduct pretrial proceedings in any civil action in which an inmate's participation is required or permitted by telephone, video conference or other telecommunications technology without removing the inmate from the facility in which an inmate is confined.
(b) Subject to the agreement of the official with custody over an inmate, the court may conduct hearings at the correctional facility in which an inmate 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 or the executive director of the West Virginia regional jail and correctional facility authority or any administrator of any facility operated by the West Virginia regional jail and correctional facility authority to transport to court any inmate having a maximum security classification if the warden or administrator of the facility tenders to the court an affidavit attesting to the custody level of the inmate and stating that, in the warden's or administrator's opinion, the inmate possess a substantial risk of escape if transported. If a warden or administrator files an affidavit, then the warden or administrator shall, upon demand of the court, provide suitable room to conduct any trial or hearings at which an inmate's presence is required. The warden or administrator shall allow the court, counsel and all court personnel access to the correctional facility to conduct the proceedings the court considers necessary.
§25-1A-7. Loss of good-time credit.
Upon a finding by the court that a civil action is frivolous, malicious or intended to harass the party against whom the civil action is brought, or that the inmate knowingly testified falsely or otherwise knowingly presented false evidence or information to the court, the court may order that the inmate forfeit earned good-time credit. A court may take additional evidence to determine the appropriate amount of good-time credit to be forfeited.
§25-1A-8. Limitation upon number of civil actions.
If a court finds that an inmate has previously filed three civil actions in any court of this state, following the effective date of this article, and the civil actions were dismissed on the ground that they were frivolous, malicious or failed to state a claim for which relief could be granted, then the court shall dismiss all further civil actions unless it appears that the civil action is necessary to prevent the inmate 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, after deduction for any attorney fees, shall be paid directly to satisfy any outstanding court-ordered payments pending against the inmate, 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) No attorney's fee shall be awarded to an inmate in any civil action, except to the extent that:
(1) The fee was directly and reasonably incurred by an attorney in proving an actual violation of the inmate's rights protected by the constitution or statute; and
(2) The amount of the fee is proportionately related to the court-ordered relief for the violation or the fee was directly and reasonably incurred in enforcing the relief ordered for the violation.
(b) Nothing in this section shall prohibit an inmate from entering into an agreement to pay an attorney's fee in excess of the amount authorized in this section, if the fee is paid by the inmate rather than by another party to a civil action.