Senate Bill No. 547–Committee on Judiciary

 

(On Behalf of Office of the Attorney General)

 

March 26, 2001

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Makes various changes pertaining to litigation involving prisoners. (BDR 2‑478)

 

FISCAL NOTE:    Effect on Local Government: No.

                                 Effect on the State: No.

 

~

 

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 or 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 thereto a

1-2  new section to read as follows:

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

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

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

1-6  the prisoner is unable to prosecute or defend the action because the

1-7  prisoner is unable to pay the costs of so doing. The affidavit must be

1-8  accompanied by a certified copy of the statement of the trust account of

1-9  the prisoner, for the 6-month period immediately preceding the date of

1-10  the filing of the action, obtained from the appropriate official of each

1-11  prison at which the prisoner is or was confined. Subject to the provisions

1-12  of subsection 2, if the judge is satisfied that the prisoner is unable to pay

1-13  the costs, the judge shall order:

1-14    (a) The clerk of the court:

1-15      (1) To allow the prisoner to commence or defend the action; and

1-16      (2) To file or issue any necessary writ, process, pleading or paper.

1-17    (b) The sheriff or other appropriate public officer within this state to

1-18  make personal service of any necessary writ, process, pleading or paper.

2-1    2.  Notwithstanding the provisions of subsection 1, a prisoner who

2-2  files a civil action pursuant to subsection 1 shall pay the full amount of

2-3  all filing fees. The court shall assess and, when funds exist, collect, as a

2-4  partial payment of the required filing fees, an initial partial filing fee of

2-5  20 percent of the greater of:

2-6    (a) The average monthly deposits to the prisoner’s account; or

2-7    (b) The average monthly balance in the prisoner’s account for the
6-month period immediately preceding the filing of the action.

2-8    3.  The provisions of subsection 2 must not be construed to prohibit a

2-9  prisoner from filing a civil action for the reason that the prisoner has no

2-10  assets and no means by which to pay the initial partial filing fee.

2-11    4.  After payment of the initial partial filing fee, the prisoner shall

2-12  make monthly payments of 20 percent of the preceding month’s income

2-13  credited to the prisoner’s account. The appropriate official at the prison

2-14  having custody of the prisoner shall forward payments from the

2-15  prisoner’s account to the clerk of the court each time the amount in the

2-16  account exceeds $10 until the required filing fees are paid.

2-17    5.  If the prisoner is required to have proceedings reported or

2-18  recorded, or if the court determines that the reporting, recording or

2-19  transcription of proceedings would be helpful to the adjudication or

2-20  appellate review of the case, the court shall order that the reporting,

2-21  recording or transcription be performed at the expense of the county in

2-22  which the action is pending but at a reduced rate as set by the county.

2-23    6.  If the prisoner prevails in the action, the court shall enter its order

2-24  requiring the losing party, within 5 days:

2-25    (a) To pay the prisoner for any costs incurred by the prisoner

2-26  pursuant to this section; and

2-27    (b) To pay into court any costs that would have otherwise been

2-28  incurred by the prisoner if the court had not waived those costs pursuant

2-29  to this section, and those costs must then be paid as provided by law.

2-30    7.  If the affidavit establishes that the prisoner is unable to defend an

2-31  action, the running of the time within which to appear and answer or

2-32  otherwise defend is tolled during the period between the filing of the

2-33  affidavit and the ruling of the court thereon.

2-34    8.  An affidavit filed pursuant to this section, and any application or

2-35  request for an order filed with the affidavit, does not constitute a general

2-36  appearance before the court by the affiant or give the court personal

2-37  jurisdiction over him.

2-38    9.  Notwithstanding the fact that a prisoner has paid any filing fee, or

2-39  any portion thereof, pursuant to this section, the court shall dismiss the

2-40  action at any time if the court determines that the allegation of poverty is

2-41  untrue or that the action:

2-42    (a) Fails to state a claim on which relief can be granted;

2-43    (b) Seeks monetary relief against a defendant who is immune from

2-44  such relief; or

2-45    (c) Is subject to dismissal for any other reason.

2-46    10.  The order of the court to which application is made pursuant to

2-47  this section is not appealable.

3-1    11.  As used in this section, “prisoner” means a person who is

3-2  incarcerated, confined or detained in any institution or facility of the

3-3  department of prisons, any local jail or detention facility, or any other

3-4  state or local correctional or detention facility located within this state.

3-5    Sec. 2.  NRS 12.015 is hereby amended to read as follows:

3-6    12.015  1.  [Any] Except as otherwise provided in section 1 of this

3-7  act, any person who desires to prosecute or defend a civil action may file

3-8  an affidavit with the court setting forth with particularity facts concerning

3-9  his income, property and other resources which establish that he is unable

3-10  to prosecute or defend the action because he is unable to pay the costs of so

3-11  doing. If the judge is satisfied that the person is unable to pay the costs, he

3-12  shall order:

3-13    (a) The clerk of the court:

3-14      (1) To allow the person to commence or defend the action without

3-15  costs; and

3-16      (2) To file or issue any necessary writ, process, pleading or paper

3-17  without charge.

3-18    (b) The sheriff or other appropriate public officer within this state to

3-19  make personal service of any necessary writ, process, pleading or paper

3-20  without charge.

3-21    2.  If the person is required to have proceedings reported or recorded,

3-22  or if the court determines that the reporting, recording or transcription of

3-23  proceedings would be helpful to the adjudication or appellate review of the

3-24  case, the court shall order that the reporting, recording or transcription be

3-25  performed at the expense of the county in which the action is pending but

3-26  at a reduced rate as set by the county.

3-27    3.  If the person prevails in the action, the court shall enter its order

3-28  requiring the losing party to pay into court within 5 days the costs which

3-29  would have been incurred by the prevailing party, and those costs must

3-30  then be paid as provided by law.

3-31    4.  Where the affidavit establishes that the person is unable to defend

3-32  an action, the running of the time within which to appear and answer or

3-33  otherwise defend is tolled during the period between the filing of the

3-34  affidavit and the ruling of the court thereon.

3-35    5.  An affidavit filed pursuant to this section, and any application or

3-36  request for an order filed with the affidavit, does not constitute a general

3-37  appearance before the court by the affiant or give the court personal

3-38  jurisdiction over him.

3-39    6.  The order of the court to which application is made pursuant to this

3-40  section is not appealable.

3-41    Sec. 3.  Chapter 41 of NRS is hereby amended by adding thereto a new

3-42  section to read as follows:

3-43    1.  A prisoner may not bring a civil action for mental or emotional

3-44  injury suffered while in custody without a prior showing of physical

3-45  harm.

 

 

 

4-1    2.  As used in this section, “prisoner” means a person who is

4-2  incarcerated, confined or detained in any institution or facility of the

4-3  department of prisons, any local jail or detention facility, or any other

4-4  state or local correctional or detention facility located within this state.

 

4-5  H