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
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.
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
§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
§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.
(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 of the facility tenders to the court an affidavit attesting
to the custody level of the inmate and stating that, in the
warden's opinion, the inmate possess a substantial risk of escape
if transported. If a warden files an affidavit, then the warden
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 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
§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
(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.