ENROLLED

COMMITTEE SUBSTITUTE

FOR

COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 109

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

By Request of the Executive)

____________

[Passed March 11, 2000; in effect from passage.]

____________


AN ACT 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; requiring judicial review of initial pleading; requiring dismissal of actions; permitting hearings at correctional facilities; limiting recovery; allowing forfeiture of good-time credit; and providing for payment of pending judgments.

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.
(a) An inmate may not bring a civil action until the administrative remedies promulgated by the facility have been exhausted: Provided, That the remedies promulgated by the facility will be deemed completed within sixty days from the date the inmate filed his or her initial complaint if the inmate fully complied with the requirements for filing and appealing the administrative complaint.
(b) The commissioner of the division of corrections and the executive director of the regional jail authority shall propose joint legislative rules for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code to establish administrative rules for processing inmate complaints concerning food quality, health care, non-violent or non-sexual conduct of employees or contractors of the division of corrections or regional jail authority, loss of privileges and other general complaints about daily living conditions which do not directly and seriously concern an inmate's physical health or security.
(c) Notwithstanding any other provision of this code, no inmate shall be prevented from filing an appeal of his or her conviction or bringing a civil or criminal action alleging past, current or imminent physical or sexual abuse; if such a civil or criminal action is ultimately dismissed by a judge as frivolous, then the inmate shall pay the filing costs associated with the civil or criminal action as provided for in 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 a civil action without the payment of filing fees as set forth in this section: Provided, That the collection of the full filing fee is not required before the inmate's claim may be filed and served.
(b) When an inmate seeks to file a civil action as an indigent and requests that customary filing fees and court costs be waived, the clerk of the court in which the inmate has filed his or her complaint shall notify the warden or designated representative of the facility in which the inmate resides of the inmate's request and the amount of filing costs. Once the facility receives notification, the custodian of the inmate's trust account shall immediately compute the average monthly balance of the inmate's trust account over the preceding three-month period and deduct from the inmate's trust account thirty percent of the average balance as a partial filing fee. The custodian shall deduct that same amount or up to thirty percent of the balance of the inmate's trust account, whichever is greater, on a monthly basis until the filing fee is paid in full.
(c) The custodian of the inmate's trust account shall place all funds deducted from the inmate's trust into a special account designated as the "filing fees account", to be established for each correctional facility and to be administered by the custodian and warden or chief administrator of each facility. Biannually the custodian and warden or chief administrator of the filing fees account shall distribute the balance of the account, minus any expense in maintaining that account, to the circuit clerk of the county in which the state correctional facility resides as a filing fee for all suits filed by indigent inmates of that facility.
§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 is frivolous or malicious as defined in subsection (b) of this section and 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) A civil action is frivolous or malicious if it:
(1) Has no arguable basis in fact or law; or
(2) 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
(3) Has been brought with the intent to harass an opposing party.
§25-1A-5. 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 possesses 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-6. 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-7. 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-8. 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.