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
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
ARTICLE 1A. WEST VIRGINIA PRISONER LITIGATION REFORM ACT.
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
§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
(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
(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
§ 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
(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.