HB3793 94TH GENERAL ASSEMBLY

LRB094 03679 RLC 33684 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB3793

Introduced 2/25/2005, by Rep. Brandon W. Phelps

SYNOPSIS AS INTRODUCED:

New Act

Creates the Inmate Civil Lawsuit Act. Provides that prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the State right of a particular plaintiff or plaintiffs. Provides that the court shall not grant or approve any prospective relief unless the court finds that the relief is narrowly drawn, extends no further than necessary to correct the violation of the State right, and is the least intrusive means necessary to correct the violation of the State right. Provides that the court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief. Provides that the court shall not order any prospective relief that requires or permits a government official to exceed his or her authority under State or local law or otherwise violates State or local law unless State law permits the relief to be ordered, and the relief is necessary to correct the violation of a State right, and no other relief will correct the violation of the State right. Provides that an inmate suit may not assert a claim under State law until the administrative remedies that are available are exhausted. Provides that if an inmate suit is filed in contravention of this provision, the court shall dismiss the suit without prejudice. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning inmate suits.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Inmate Civil Lawsuit Act.

Section 5. Definitions. In this Act:

"Consent decree" means any relief entered by the court that is based in whole or in part upon the consent or acquiescence of the parties but does not include private settlements.

"Civil action with respect to prison conditions" or "prisoner suit" means any civil proceeding with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include post conviction relief or habeas corpus proceedings challenging the fact or duration of confinement in prison.

"Expert" means any person appointed by a court to exercise the powers of an expert, regardless of the title or description given by the court.

"Fails to state a claim upon which relief can be granted" means the petition does not allege a set of facts in support of a claim which would entitle the petitioner to relief on that claim.

"Correctional facility" means any State or local jail, prison, or other correctional facility that incarcerates or detains juveniles or adults accused of, convicted of, sentenced for, or adjudicated delinquent for violations of criminal law.

"Inmate" means any person subject to incarceration, detention, or admission to any correctional facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for a violation of criminal law or the terms or conditions of parole, probation, pretrial release, or a diversionary program. Status as an "inmate" is determined as of the time the cause of action arises. Subsequent events, including post trial judicial action or release from custody, shall not affect that status.

"Inmate release order" includes any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the inmate population, or that directs the release of inmates from or prohibits the admission of inmates to a correctional facility.

"Private settlement agreement" means an agreement entered into among the parties that is not subject to judicial enforcement other than the reinstatement of the civil proceeding that the agreement settled.

"Prospective relief" means all relief other than compensatory monetary damages.

"Relief" means all relief in any form that may be granted or approved by the court, and includes consent decrees but does not include private settlement agreements.

Section 10. Appropriate remedies with respect to correctional facility conditions.

(a) Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the State right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that relief is narrowly drawn, extends no further than necessary to correct the violation of the State right, and is the least intrusive means necessary to correct the violation of the State right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief. The court shall not order any prospective relief that requires or permits a government official to exceed his or her authority under State or local law or otherwise violates State or local law unless State law permits the relief to be ordered, and the relief is necessary to correct the violation of a State right, and no other relief will correct the violation of the State right. Nothing in this Section shall be construed to authorize the courts, in exercising their remedial powers, to order the construction of prisons or the raising of taxes, or to repeal or detract from otherwise applicable limitations on the remedial powers of the courts.

(b) In any civil action with respect to correctional facility conditions, to the extent otherwise authorized by law, the court may enter a temporary restraining order or an order for preliminary injunctive relief. Preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief. Preliminary injunctive relief shall automatically expire 90 days after its entry, unless the court makes the findings required under subsection (a) for the entry of prospective relief and makes the order final before the expiration of the 90-day period.

(c) In any civil action with respect to prison conditions, no prisoner release order shall be entered unless a court has previously entered an order for less intrusive relief that has failed to remedy the violation of the State right sought to be remedied through the prisoner release order and the defendant has had a reasonable amount of time to comply with the previous court order.

(d) Any State or local official or unit of government whose jurisdiction or function includes the appropriation of funds for the construction, operation, or maintenance of correctional facilities, or the prosecution or custody of persons who may be released from, or not admitted to, a correctional facility as a result of an inmate release order shall have standing to oppose the imposition or continuation in effect of the relief and to seek termination of the relief, and shall have the right to intervene in any proceeding relating to the relief.

(e)(1) In any civil action with respect to correctional facility conditions in which prospective relief is ordered, the relief shall be terminable upon the motion of any party or intervener 2 years after the date the court granted or approved the prospective relief, or one year after the date the court has entered an order denying termination of prospective relief under this Section, or, in the case of an order issued on or before the effective date of this Act, 2 years after that date.

(2) In any civil action with respect to correctional facility conditions, a defendant or intervener shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief was narrowly drawn, extended no further than necessary to correct the violation of the State right, and was the least intrusive means necessary to correct the violation of the State right.

(3) Prospective relief shall not terminate if the court makes written findings based on the record that prospective relief remains necessary to correct a current or ongoing violation of the State right and that the prospective relief is narrowly drawn, extends no further than necessary to correct the violation of the State right, and is the least intrusive means to correct the violation.

(4) Nothing in this Section prevents any party or intervener from seeking modification or termination before the relief is terminable under this subsection, to the extent that modification or termination would otherwise be legally permissible.

(f) In any civil action with respect to correctional facility conditions, the court shall not enter or approve a consent decree unless it complies with the limitations on relief set forth in subsection (a). Nothing in this Section precludes parties from entering into a private settlement agreement that does not comply with the limitations on relief set forth in subsection (a), if the terms of that agreement are not subject to court enforcement other than the reinstatement of the civil proceeding that the agreement settled.

(g) The court shall promptly rule on any motion to modify or terminate prospective relief in a civil action with respect to correctional facility conditions. Any prospective relief subject to a pending motion is automatically stayed during the period beginning on the 30th day after the motion is filed, in the case of a motion made under subsection (e), or beginning on the 180th day after the motion is filed, in the case of a motion made under any other law, and ending on the date the court enters a final order ruling on the motion.

Section 15. Experts.

(a) When otherwise specifically authorized by law, in any inmate suit, the court may appoint an expert who shall be disinterested and objective and will give due regard to the public safety. If the court determines that the appointment of an expert is necessary, the court shall request that the defendant and the plaintiff each submit a list of not more than 5 persons to serve as an expert. Each party shall have the opportunity to remove up to 3 persons from the opposing party's list. The court shall select the expert from the persons remaining on the lists after all names have been removed. Any party shall have the right to an interlocutory appeal of the judge's selection of the expert under this Section on the ground of partiality.

(b) An expert appointed under this Section may be authorized to conduct hearings and prepare proposed findings of fact on the record and may assist in the development of remedial plans. The expert shall not make any findings or communications ex parte. An expert may be appointed during the remedial phase of a civil action with respect to correctional facility conditions only upon a finding that the remedial phase will be sufficiently complex to warrant the appointment.

(c) In any civil action with respect to correctional facility conditions in which an expert is appointed under this Section, the court shall review the appointment of the expert every 6 months to determine whether the services of the expert continue to be required. The expert may be removed at any time. In no event shall the appointment of an expert extend beyond the termination of the relief.

(d) Notwithstanding any other law to the contrary, the compensation to be allowed to an expert shall not be greater than the hourly rate established for payment of court-appointed counsel, plus costs reasonably incurred by the expert. The compensation and costs shall be paid with funds available to the court through the county where the court sits.

Section 20. Suits by inmates.

(a) In this Section:

"Administrative remedies" means written policies adopted by governmental entities responsible for the operation of correctional facilities which establish an internal procedure for receiving, addressing, and resolving claims by inmates with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in a correctional facility.

"Available" means all administrative remedies adopted by governmental entities, which address claims of the kind asserted by the inmate even if the administrative remedies do not allow the prisoner the particular kind of relief sought.

(b) An inmate suit may not assert a claim under State law until the administrative remedies that are available are exhausted. If an inmate suit is filed in contravention of this subsection (b), the court shall dismiss the suit without prejudice.

(c) A court shall take judicial notice of administrative remedies adopted by a governmental entity that have been filed with the clerk of the court in the county where the governmental entity is domiciled.

(d) The court, on its own motion or on the motion of a party, shall dismiss any inmate suit if the court is satisfied that the action is frivolous, is malicious, fails to state a cause of action, seeks monetary relief from a defendant who is immune from the relief, or fails to state a claim upon which relief can be granted. If the court makes a determination to dismiss the suit based on the content, or lack thereof, of the petition, the court may dismiss the underlying claim without first requiring the exhaustion of administrative remedies. The court, on its own motion, may raise an exception of improper venue and transfer the suit to a court of proper venue or dismiss the suit.

(e) Any defendant may waive the right to reply to any civil action brought by a person confined in any correctional facility or to any inmate suit. Notwithstanding any other law or rule of procedure, the waiver does not constitute an admission of the allegations contained in the petition or waive any affirmative defenses available to the defendant. Relief shall not be granted to the plaintiff unless an answer has been filed. The court may require any defendant to answer a petition brought under this Section if it finds that the plaintiff has a reasonable opportunity to prevail on the merits.

(f) To the extent practicable, in any action brought with respect to correctional facility conditions pursuant to the provisions of this Section, or any other law, by an inmate confined in any correctional facility, pretrial proceedings in which the inmate's participation is required or permitted shall be conducted by telephone, video conference, or other communications technology without removing the inmate from the facility in which he or she is confined. The courts may rule on exceptions and motions, without holding a contradictory hearing, after providing the parties an opportunity to file supporting and opposing memoranda. Subject to agreement by the State or local entity of government with custody over the inmate, hearings may be conducted at the facility in which the inmate is confined. To the extent practicable, the court shall allow counsel to participate by telephone, video conference, or other telecommunications technology in any hearing held at the facility.

(g) An inmate suit may not assert a claim under State law for mental or emotional injury suffered while in custody without a prior showing of physical injury.

(h) The exclusive venue for delictual actions for injury or damages shall be the county where the correctional facility is situated to which the inmate was assigned when the cause of action arose. Upon consent of all parties, the court may transfer the suit to a county in which venue would otherwise be proper.

(i) The actions of more than one inmate may not be cumulated and an inmate suit filed or prosecuted pro se may not assert a class action. If a suit names more than one plaintiff or asserts a pro se class action, the actions of any plaintiff, other than the first named plaintiff, shall be dismissed without prejudice.

Section 25. Attorney's fees.

(a) In any inmate suit in which attorney's fees are authorized, the fees shall not be awarded, except to the extent that the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute pursuant to which a fee may be awarded, and 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 violation.

(b) Whenever a monetary judgment is awarded in an action described in subsection (a), a portion of the judgment, not to exceed 25%, shall be applied to satisfy the amount of attorney's fees awarded against the defendant. If the award of attorney's fees is not greater than 150% of the judgment, the excess shall be paid by the defendant. No award of attorney's fees in an action shall be based on an hourly rate greater than the hourly rate established for payment of court-appointed counsel.

(c) Nothing in this Section prohibits an inmate from entering into an agreement to pay an attorney's fee in an amount greater than the amount authorized under this Section, if the fee is paid by the individual rather than by the defendant.

Section 30. Proceedings in forma pauperis.

(a)(1) An inmate who seeks to bring a civil action or file an appeal or writ application in a civil action without prepayment of fees or security must comply with all requirements for proceeding in forma pauperis and shall submit a certified copy of the trust fund account statement or institutional equivalent for the six-month period immediately preceding the filing of the petition, notice of appeal, or writ application obtained from the appropriate official of each correctional facility at which the inmate is or was confined.

(2) If an inmate brings a civil action or files an appeal or writ application in forma pauperis as authorized by paragraph (a)(1), the inmate shall still be required to pay the full amount of a filing fee. The court shall assess and, when funds exist, collect, as a partial payment of any court fees required by law, an initial partial filing fee of 20% of the greater of the average monthly deposits to the inmate's account, or the average monthly balance in the inmate's account for the 6-month period immediately preceding the filing of the petition, notice of appeal, or writ application.

(3) If an inmate brings a civil action, files an appeal, or files a writ application in which the inmate is not allowed to proceed as a pauper, the inmate must pay the required costs in advance. If the inmate does not pay the costs in advance, the civil action, appeal, or writ application shall be dismissed without prejudice.

(b)(1) After payment of the initial partial filing fee, as required by paragraph (a)(2) of this Section, the inmate shall be required to make monthly payments of 20% of the preceding month's income credited to the inmate's account. The agency having custody of the inmate shall forward payments from the inmate's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid. In no event shall the filing fee collected exceed the amount of fees permitted by law.

(2)(A) The order granting an inmate's request to proceed in forma pauperis automatically stays all proceedings, including any service of process, until all costs of court or fees due the clerk by the inmate in this matter are paid. During the pendency of the stay the inmate may not take any action to prosecute the suit, including but not limited to filing any pleadings, discovery, or motions other than a motion for voluntary dismissal or a motion to lift the stay because all costs have been paid.

(B) If at any time during the pendency of the action additional costs of court or fees due the clerk by the inmate accrue and are unpaid by the inmate, then upon order of the court ex proprio motu or upon motion of the clerk or any other party, the action may be stayed as provided herein until all the additional costs are paid.

(C) If the inmate does not pay the full court costs or fees within 3 years from when they are incurred, the suit shall be abandoned and dismissed without prejudice. This provision shall be operative without formal order, but, on the court's own motion or upon ex parte motion of any party, the clerk or other interested person by affidavit which provides that the full court costs and fees have not been paid within 3 years from when they were incurred, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The order shall be served on the plaintiff and the plaintiff shall have 30 days from date of service to move to set aside the dismissal. However, the trial court may direct that a contradictory hearing be held prior to dismissal.

(D) The automatic stay does not apply only if the court makes a written finding that:

(i) the suit is a proceeding for judicial review;

(ii) the suit is a post-conviction relief or habeas corpus proceeding challenging the fact or duration of confinement in a correctional facility; or

(iii) the inmate is in imminent danger of serious physical injury, the suit solely seeks injunctive relief to avoid the danger, and relief is available in the suit which will avert the danger.

(c) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that the allegation of poverty is untrue, or the action or appeal is frivolous, is malicious, fails to state a cause of action, seeks monetary relief against a defendant who is immune from the relief, or fails to state a claim upon which relief can be granted.

(d) If the judgment against an inmate includes the payment of costs, the inmate shall be required to pay the full amount of the costs ordered and in the same manner as is provided for filing fees. In no event shall the costs collected exceed the amount of the costs ordered by the court.

(e) In actions to which this Section applies, the provisions of this Section, to the extent of any conflict with those of the Code of Civil Procedure, apply to the payment of filing fees and costs.

(f) If an inmate has at least 3 dismissals as described in Section 35 but the inmate does not yet have 3 dismissals that are final under that Section, and, further, if the inmate is disqualified from proceeding as a pauper either in federal court by operation of 28 U.S.C. 1915(g) or in the courts of another state by operation of a similar law of that state, then the court on its own motion may, or on motion of a party shall, stay all proceedings in any other prisoner suit or appeal in which the inmate is proceeding as a pauper until the time as the dismissals become final. This subsection (f) does not apply if the court finds that the inmate is in imminent danger of serious physical injury.

Section 35. Multiple claims. In no event shall an inmate bring a civil action or appeal a judgment in a civil action or proceeding in forma pauperis if the inmate has, on 3 or more prior occasions while incarcerated or detained in any facility, brought an action or appeal in a State court that was dismissed on the grounds that it was frivolous, was malicious, failed to state a cause of action, or failed to state a claim upon which relief may be granted, unless the inmate is under imminent danger of serious physical injury.

Section 40. Judicial screening and service of process.

(a) The court shall review, before docketing if feasible or, in any event, before service on the defendants, a petition in a civil action in which an inmate seeks redress from a governmental entity or officer or employee of a governmental entity. On review, the court shall identify cognizable claims or dismiss the petition, or any portion of the petition, if the petition is frivolous, is malicious, fails to state a cause of action, seeks monetary relief from a defendant who is immune from the relief, or fails to state a claim upon which relief can be granted.

(b) A court shall not authorize or permit service of an inmate suit until compliance with both of the following:

(1) the screening required in subsection (a) of this Section has been completed.

(2) the provisions of Section 30 have been satisfied, if the plaintiff is proceeding in forma pauperis.

(c) The clerk shall not have an inmate suit served until specifically ordered to do so by the court as provided in subsection (b) of this Section, and then the suit shall be served only upon those defendants specifically ordered by the court to be served.

Section 45. Payment of damage award in satisfaction of pending restitution orders. Any damages awarded to an inmate in connection with a civil action brought against any correctional facility or against any official or agent of the correctional facility shall be paid directly to satisfy any outstanding restitution orders pending against the inmate. The remainder of any such award after full payment of all pending restitution orders shall be forwarded to the inmate. Prior to payment of any damages awarded under this Act, reasonable efforts shall be made to notify the victims of the crime for which the inmate was convicted and incarcerated concerning the pending payment of any such damages.

Section 50. Earned release credit or good time credit revocation. If a lawsuit is filed by a prisoner in an Illinois or federal court against the State, the Department of Corrections, or the Prisoner Review Board, or against any of their officers or employees, and the court makes a specific finding that a pleading, motion, or other paper filed by the prisoner is frivolous, the Department of Corrections shall conduct a hearing to revoke up to 180 days of good conduct credit by bringing charges against the prisoner sought to be deprived of the good conduct credits before the Prisoner Review Board as provided in subparagraph (a)(8) of Section 3-3-2 of the Unified Code of Corrections. If the prisoner has not accumulated 180 days of good conduct credit at the time of the finding, then the Prisoner Review Board may revoke all good conduct credit accumulated by the prisoner.

Section 55. Claims arising under federal law. Except as specifically prohibited by federal law, the provisions of this Act shall also apply to all prisoner suits in State courts asserting claims arising under 42 U.S.C. 1983 or other federal laws.

Section 99. Effective date. This Act takes effect upon becoming law.