Assembly Bill No. 188–Committee on Judiciary

 

(On Behalf of the Attorney General)

 

February 24, 2003

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Makes various changes pertaining to litigation involving prisoners. (BDR 2‑431)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: No.

 

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to prisoners; requiring a prisoner who commences a civil action to pay the full amount of any filing fees under certain circumstances; prohibiting a prisoner from bringing a civil action for mental and emotional injury without a prior showing of physical harm; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1  Section 1. Chapter 12 of NRS is hereby amended by adding

1-2  thereto a new section to read as follows:

1-3  1.  A prisoner who desires to prosecute or defend a civil action

1-4  may file an affidavit with the court setting forth with particularity

1-5  facts concerning his income, property and other resources which

1-6  establish that the prisoner is unable to prosecute or defend the

1-7  action because the prisoner is unable to pay the costs of so doing.

1-8  The affidavit must be accompanied by a certified copy of the

1-9  statement of the trust account of the prisoner, for the 6-month

1-10  period immediately preceding the date of the filing of the action,

1-11  obtained from the appropriate official of each prison at which the

1-12  prisoner is or was confined. Subject to the provisions of subsection

1-13  2, if the judge is satisfied that the prisoner is unable to pay the

1-14  costs, the judge shall order:

2-1  (a) The clerk of the court:

2-2       (1) To allow the prisoner to commence or defend the

2-3  action; and

2-4       (2) To file or issue any necessary writ, process, pleading or

2-5  paper.

2-6  (b) The sheriff or other appropriate public officer within this

2-7  state to make personal service of any necessary writ, process,

2-8  pleading or paper.

2-9  2.  Notwithstanding the provisions of subsection 1 and except

2-10  as otherwise provided in subsection 11, a prisoner who files a civil

2-11  action pursuant to subsection 1 shall pay the full amount of all

2-12  filing fees. The court shall assess and, when funds exist, collect, as

2-13  a partial payment of the required filing fees, an initial partial

2-14  filing fee of 20 percent of the greater of:

2-15      (a) The average monthly deposits to the prisoner’s account; or

2-16      (b) The average monthly balance in the prisoner’s account for

2-17  the 6-month period immediately preceding the filing of the action.

2-18      3.  The provisions of subsection 2 must not be construed to

2-19  prohibit a prisoner from filing a civil action for the reason that the

2-20  prisoner has no assets and no means by which to pay the initial

2-21  partial filing fee.

2-22      4.  After payment of the initial partial filing fee, the prisoner

2-23  shall make monthly payments of 20 percent of the preceding

2-24  month’s income credited to the prisoner’s account. The

2-25  appropriate official at the prison having custody of the prisoner

2-26  shall forward payments from the prisoner’s account to the clerk of

2-27  the court each time the amount in the account exceeds $10 until

2-28  the required filing fees are paid.

2-29      5.  If the prisoner is required to have proceedings reported or

2-30  recorded, or if the court determines that the reporting, recording

2-31  or transcription of proceedings would be helpful to the

2-32  adjudication or appellate review of the case, the court shall order

2-33  that the reporting, recording or transcription be performed at the

2-34  expense of the county in which the action is pending but at a

2-35  reduced rate as set by the county.

2-36      6.  If the prisoner prevails in the action, the court shall enter

2-37  its order requiring the losing party, within 5 days:

2-38      (a) To pay the prisoner for any costs incurred by the prisoner

2-39  pursuant to this section; and

2-40      (b) To pay into court any costs that would have otherwise been

2-41  incurred by the prisoner if the court had not waived those costs

2-42  pursuant to this section, and those costs must then be paid as

2-43  provided by law.

2-44      7.  If the affidavit establishes that the prisoner is unable to

2-45  defend an action, the running of the time within which to appear

3-1  and answer or otherwise defend is tolled during the period

3-2  between the filing of the affidavit and the ruling of the court

3-3  thereon.

3-4  8.  An affidavit filed pursuant to this section, and any

3-5  application or request for an order filed with the affidavit, does not

3-6  constitute a general appearance before the court by the affiant or

3-7  give the court personal jurisdiction over him.

3-8  9.  Notwithstanding the fact that a prisoner has paid any filing

3-9  fee, or any portion thereof, pursuant to this section, the court shall

3-10  dismiss the action at any time if the court determines that the

3-11  allegation of poverty is untrue or that the action:

3-12      (a) Fails to state a claim on which relief can be granted;

3-13      (b) Seeks monetary relief against a defendant who is immune

3-14  from such relief; or

3-15      (c) Is subject to dismissal for any other reason.

3-16      10.  The order of the court to which application is made

3-17  pursuant to this section is not appealable.

3-18      11.  The provisions of subsection 2 do not apply to an action

3-19  pertaining to divorce, annulment, child support or the termination

3-20  of parental rights.

3-21      12.  As used in this section, “prisoner” means a person who is

3-22  incarcerated, confined or detained in any institution or facility of

3-23  the Department of Corrections, any local jail or detention facility,

3-24  or any other state or local correctional or detention facility located

3-25  within this state.

3-26      Sec. 2.  NRS 12.015 is hereby amended to read as follows:

3-27      12.015  1.  [Any] Except as otherwise provided in section 1 of

3-28  this act, any person who desires to prosecute or defend a civil action

3-29  may file an affidavit with the court setting forth with particularity

3-30  facts concerning his income, property and other resources which

3-31  establish that he is unable to prosecute or defend the action because

3-32  he is unable to pay the costs of so doing. If the judge is satisfied that

3-33  the person is unable to pay the costs, he shall order:

3-34      (a) The clerk of the court:

3-35          (1) To allow the person to commence or defend the action

3-36  without costs; and

3-37          (2) To file or issue any necessary writ, process, pleading or

3-38  paper without charge.

3-39      (b) The sheriff or other appropriate public officer within this

3-40  state to make personal service of any necessary writ, process,

3-41  pleading or paper without charge.

3-42      2.  If the person is required to have proceedings reported or

3-43  recorded, or if the court determines that the reporting, recording

3-44  or transcription of proceedings would be helpful to the adjudication

3-45  or appellate review of the case, the court shall order that the

4-1  reporting, recording or transcription be performed at the expense of

4-2  the county in which the action is pending but at a reduced rate as set

4-3  by the county.

4-4  3.  If the person prevails in the action, the court shall enter its

4-5  order requiring the losing party to pay into court within 5 days the

4-6  costs which would have been incurred by the prevailing party, and

4-7  those costs must then be paid as provided by law.

4-8  4.  Where the affidavit establishes that the person is unable to

4-9  defend an action, the running of the time within which to appear and

4-10  answer or otherwise defend is tolled during the period between the

4-11  filing of the affidavit and the ruling of the court thereon.

4-12      5.  An affidavit filed pursuant to this section, and any

4-13  application or request for an order filed with the affidavit, does not

4-14  constitute a general appearance before the court by the affiant or

4-15  give the court personal jurisdiction over him.

4-16      6.  The order of the court to which application is made pursuant

4-17  to this section is not appealable.

4-18      Sec. 3.  Chapter 41 of NRS is hereby amended by adding

4-19  thereto a new section to read as follows:

4-20      1.  A prisoner may not bring a civil action for mental or

4-21  emotional injury suffered while in custody without a prior

4-22  showing of physical harm.

4-23      2.  As used in this section, “prisoner” means a person who is

4-24  incarcerated, confined or detained in any institution or facility of

4-25  the Department of Corrections, any local jail or detention facility,

4-26  or any other state or local correctional or detention facility located

4-27  within this state.

 

4-28  H