Senate Bill No. 109
(By Senators Tomblin (Mr. President) and Sprouse
By Request of the Executive)
[Introduced January 17, 2000; referred to the Committee
on the Judiciary; and then to the Committee on 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; 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.
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
(b) "Facility" means all county jails, regional jails, and
facilities operated by the division of corrections and division of
(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
(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
(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
(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
(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.
(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
(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
(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
§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
(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.