Senate Bill No. 109
(By Senators Tomblin (Mr. President) and Sprouse
By Request of the Executive)
[Originating in the Committee on the Judiciary;
reported January 21, 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 therefrom filed
by any current or former inmate or his 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 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
§25-1A-2. Mandatory exhaustion of administrative remedies.
No civil action shall be brought 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
inmate shall be allowed to file with any court of this state, and
no court shall accept for filing, a civil action without the
payment of filing fees as set forth in this section. No civil
action shall be accepted for filing by such clerk 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 be required to 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 action will not be considered a substantially
prevailing party unless such settlement provides otherwise.
(1) Upon a determination that the inmate did not substantially
prevail, the court shall assess court costs and such 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 tax as
costs the costs of transporting the inmate to all proceedings,
including mileage and wages of all correctional officers
transporting such 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, process shall not issue and the case shall be
(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, 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 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.
No civil action may be brought by an inmate for mental or
emotional injury suffered while confined in a facility without a
prior showing of physical injury.
(a) To the extent practicable, pretrial proceedings in any
civil action in which an inmate's participation is required or
permitted shall be conducted 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, hearings may be conducted at the 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
(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 if 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, the inmate
possesses a substantial risk of escape if transported. If a warden files such 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 such facility to
conduct such proceedings the court deems 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 testified falsely or
otherwise 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, wherein such 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 such 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.
(NOTE: The purpose of this bill is to control the growing
cost of inmate litigation related to prison conditions against the
state and counties by requiring inmates 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 inmates regarding prison conditions.
This article is new; therefore, strike-throughs and
underscoring have been omitted.)