HOUSE BILL 981079
BY REPRESENTATIVES Miller, Adkins, K. Alexander, Arrington, G. Berry, Dean, Epps, Grossman, Hagedorn, S. Johnson, Kaufman, Morrison, Nichol, Paschall, Pfiffner, Smith, Spradley, Sullivant, Taylor, Young, and Zimmerman;
also SENATORS Ament, B. Alexander, Arnold, Bishop,
Chlouber, Coffman, Powers, and Schroeder.
CONCERNING PRISONER LAWSUITS.
Be it enacted by the General Assembly of the State
of Colorado:
SECTION 1. 1317.5102
(1), Colorado Revised Statutes, is amended, and the said 1317.5102
is further amended BY THE ADDITION OF A NEW SUBSECTION, to read:
1317.5102. Definitions.
As used in this article only:
(1) "Detaining
facility" means any state correctional facility, as defined
in section 171102 (1.7), C.R.S., including the youthful
offender system, or any local jail, as defined in section 1611308.5
(1.5), C.R.S., or community corrections program, established in
article 27 of title 17, C.R.S. A detaining facility shall not
include any juvenile detention facility that detains only juveniles.
"CIVIL ACTION" MEANS THE FILING OF A COMPLAINT, PETITION,
WRIT, OR MOTION WITH ANY COURT WITHIN THE STATE, INCLUDING ANY
APPELLATE COURT; EXCEPT THAT "CIVIL ACTION" DOES NOT
INCLUDE ANY CRIMINAL ACTION OR AN ACTION FOR HABEAS CORPUS UNDER
ARTICLE 45 OF THIS TITLE.
(1.5) "DETAINING FACILITY" MEANS
ANY STATE CORRECTIONAL FACILITY, AS DEFINED IN SECTION 171102
(1.7), C.R.S., INCLUDING THE YOUTHFUL OFFENDER SYSTEM, ANY PRIVATE
CORRECTIONAL FACILITY HOUSING STATE PRISONERS PURSUANT TO PART
2 OF ARTICLE 1 OF TITLE 17, C.R.S., ANY LOCAL JAIL, AS DEFINED
IN SECTION 1611308.5 (1.5), C.R.S., OR ANY COMMUNITY
CORRECTIONS PROGRAM, ESTABLISHED IN ARTICLE 27 OF TITLE 17, C.R.S.
A DETAINING FACILITY SHALL NOT INCLUDE ANY JUVENILE DETENTION
FACILITY THAT DETAINS ONLY JUVENILES.
SECTION 2. Article
17.5 of title 13, Colorado Revised Statutes, is amended BY THE
ADDITION OF THE FOLLOWING NEW SECTIONS to read:
1317.5102.3. Exhaustion
of remedies. (1) NO INMATE SHALL BRING A CIVIL
ACTION BASED UPON PRISON CONDITIONS UNDER ANY STATUTE OR CONSTITUTIONAL
PROVISION UNTIL ALL AVAILABLE ADMINISTRATIVE REMEDIES HAVE BEEN
EXHAUSTED IN A TIMELY FASHION BY THE ENTITY OPERATING THE DETAINING
FACILITY AND INMATE. FOR PURPOSES OF THIS SUBSECTION (1), AN
INMATE SHALL BE CONSIDERED TO HAVE EXHAUSTED ALL AVAILABLE ADMINISTRATIVE
REMEDIES WHEN THE INMATE HAS COMPLETED THE LAST STEP IN THE INMATE
GRIEVANCE PROCESS AS SET FORTH IN THE REGULATIONS PROMULGATED
FOR THE DETAINING FACILITY.
(2) NOTWITHSTANDING SUBSECTION (1) OF
THIS SECTION, IF A COURT FINDS THAT A CLAIM FILED BY AN INMATE
IS FRIVOLOUS, MALICIOUS, FAILS TO STATE A CLAIM UPON WHICH RELIEF
MAY BE GRANTED, OR SEEKS MONETARY RELIEF FROM A DEFENDANT WHO
IS IMMUNE FROM MONETARY RELIEF, A COURT MAY DISMISS THE CLAIM
WITHOUT FIRST REQUIRING EXHAUSTION OF ADMINISTRATIVE REMEDIES.
1317.5102.7. Successive
claims. (1) NO INMATE WHO
ON THREE OR MORE OCCASIONS HAS BROUGHT AN ACTION BASED UPON PRISON
CONDITIONS THAT HAS BEEN DISMISSED ON THE GROUNDS THAT IT WAS
FRIVOLOUS, MALICIOUS, FAILED TO STATE A CLAIM UPON WHICH RELIEF
MAY BE GRANTED, OR SOUGHT MONETARY RELIEF FROM A DEFENDANT WHO
IS IMMUNE FROM SUCH RELIEF, SHALL BRING A CIVIL ACTION BASED UPON
PRISON CONDITIONS UNDER ANY STATUTE OR CONSTITUTIONAL PROVISION.
(2) NOTWITHSTANDING SUBSECTION (1) OF
THIS SECTION, AN INMATE MAY FILE A SUIT WITH THE WRITTEN PERMISSION
OF A JUDGE OF THE COURT IN WHICH THE ACTION IS TO BE FILED OR
IF THE INMATE IS IN IMMINENT DANGER OF SERIOUS PHYSICAL INJURY.
1317.5106.5. Courtordered
payment. ANY COMPENSATORY DAMAGES AWARDED
TO AN INMATE IN CONNECTION WITH A CIVIL ACTION BROUGHT AGAINST
ANY FEDERAL, STATE, OR LOCAL JAIL, PRISON, OR FACILITY OR AGAINST
ANY OFFICIAL OR AGENT OF A JAIL, PRISON, OR FACILITY, AFTER DEDUCTION
FOR ANY AWARD OF ATTORNEY FEES PURSUANT TO SECTION 1317.5106 (1) (c),
SHALL BE PAID DIRECTLY TO SATISFY ANY OUTSTANDING COURTORDERED
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 INMATE.
SECTION 3. 1317.5106
(1), Colorado Revised Statutes, is amended to read:
1317.5106. Assessment of
costs and attorney fees review of inmate spending from
account recovery of costs from inmate accounts alternative
sanctions continuing garnishment authorized.
(1) Judgment for costs
and attorney fees in a state civil action brought by an inmate
against any public defendant shall be awarded in accordance with
articles 16 and 17 of this title.
(a) IN ANY ACTION BASED UPON PRISON CONDITIONS BROUGHT
UNDER ANY STATUTE OR CONSTITUTIONAL PROVISION, IF ATTORNEY FEES
ARE RECOVERABLE PURSUANT TO ANY STATE OR FEDERAL STATUTE, NO ATTORNEY
FEES SHALL BE AWARDED TO AN INMATE, EXCEPT TO THE EXTENT THAT:
(I) THE FEES WERE DIRECTLY AND REASONABLY
INCURRED IN PROVING AN ACTUAL VIOLATION OF THE INMATE'S RIGHTS
PROTECTED BY THE CONSTITUTION OR STATUTE; AND
(II) (A) THE AMOUNT OF THE FEES IS
PROPORTIONATELY RELATED TO THE COURTORDERED RELIEF FOR THE
VIOLATION; OR
(B) THE FEES WERE DIRECTLY AND REASONABLY
INCURRED IN ENFORCING THE RELIEF ORDERED FOR THE VIOLATION.
(b) NO AWARD OF ATTORNEY FEES UNDER PARAGRAPH
(a) OF THIS SUBSECTION (1) SHALL BE BASED ON AN HOURLY RATE IN
EXCESS OF ONE HUNDRED FIFTY PERCENT OF THE HOURLY RATE PAID TO
COURTAPPOINTED COUNSEL IN THE DISTRICT IN WHICH THE ACTION
WAS FILED.
(c) WHENEVER A SEPARATE MONETARY JUDGMENT
IS AWARDED IN AN ACTION IN WHICH ATTORNEY FEES ARE AWARDED UNDER
PARAGRAPH (a) OF THIS SUBSECTION (1), A PORTION OF THE JUDGMENT
NOT TO EXCEED TWENTYFIVE PERCENT SHALL BE APPLIED TO REDUCE
THE AMOUNT OF ATTORNEY FEES AWARDED AGAINST THE DEFENDANT.
(d) NOTHING IN THIS SUBSECTION (1) SHALL
PROHIBIT AN INMATE FROM ENTERING INTO AN AGREEMENT TO PAY AN ATTORNEY
FEE IN EXCESS OF THE AMOUNT AUTHORIZED IN THIS SUBSECTION (1),
IF THE FEE IS PAID BY THE INDIVIDUAL RATHER THAN BY A DEFENDANT.
SECTION 4. 1317.5103,
Colorado Revised Statutes, is amended to read:
1317.5103. Filing fees.
Any inmate who files a motion to
proceed as a poor person, pursuant to section 1316103,
in a state civil action against any public defendant shall attach
to the motion copies of all inmate account records held by the
detaining facility and copies of all transactions concerning the
account made for the month in which the complaint is filed and
eleven months before the state civil action is filed. If the
inmate account demonstrates that the inmate has, or had during
the time period that is reviewed pursuant to this section, sufficient
funds to pay the costs of filing and service of process, the motion
to proceed as a poor person shall be denied.
(1) AN INMATE SEEKING TO BRING A CIVIL ACTION OR APPEAL
A JUDGMENT IN A CIVIL ACTION WITHOUT PREPAYMENT OF FEES, IN ADDITION
TO FILING ANY REQUIRED AFFIDAVIT, SHALL SUBMIT A COPY OF THE INMATE'S
TRUST FUND ACCOUNT STATEMENT FOR THE SIXMONTH PERIOD IMMEDIATELY
PRECEDING THE FILING OF THE COMPLAINT OR NOTICE OF APPEAL, CERTIFIED
BY AN APPROPRIATE OFFICIAL AT THE DETAINING FACILITY. IF THE
INMATE ACCOUNT DEMONSTRATES THAT THE INMATE HAS SUFFICIENT FUNDS
TO PAY THE FILING FEE, THE MOTION TO PROCEED AS A POOR PERSON
SHALL BE DENIED.
(2) ANY INMATE WHO IS ALLOWED TO PROCEED
IN THE CIVIL ACTION AS A POOR PERSON SHALL BE REQUIRED TO PAY
THE FULL AMOUNT OF THE FILING FEE IN THE FOLLOWING INSTALMENTS:
(a) IF THE INMATE HAS TEN DOLLARS OR MORE
IN HIS OR HER INMATE TRUST FUND ACCOUNT, MAKE AN INITIAL PARTIAL
PAYMENT IN ACCORDANCE WITH THE ORDER OF THE COURT; AND
(b) MAKE CONTINUING MONTHLY PAYMENTS TO
THE COURT EQUAL TO TWENTY PERCENT OF THE PRECEDING MONTH'S DEPOSITS
IN THE INMATE'S TRUST ACCOUNT UNTIL THE FEE IS PAID IN FULL.
(3) IN NO EVENT SHALL AN INMATE BE PROHIBITED
FROM FILING A CIVIL ACTION OR APPEALING A CIVIL OR CRIMINAL JUDGMENT
BECAUSE THE INMATE HAS NO ASSETS AND NO MEANS BY WHICH TO PAY
THE INITIAL PARTIAL PAYMENT.
SECTION 5. Safety
clause. The general assembly hereby finds, determines, and
declares that this act is necessary for the immediate preservation
of the public peace, health, and safety.
____________________________ ____________________________
Charles E. Berry Tom Norton
SPEAKER OF THE HOUSE PRESIDENT OF
OF REPRESENTATIVES THE SENATE
____________________________ ____________________________
Judith M. Rodrigue Patricia K. Dicks
CHIEF CLERK OF THE HOUSE ASSISTANT SECRETARY OF
OF REPRESENTATIVES THE SENATE
APPROVED________________________________________
_________________________________________
Roy Romer
GOVERNOR OF THE STATE OF COLORADO