44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO CORRECTIONS; PROVIDING FOR RESTRICTIONS ON CIVIL ACTIONS INITIATED BY INMATES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. STATE INMATES--RESTRICTIONS ON CIVIL ACTIONS INITIATED BY INMATES.--

A. A state inmate who seeks to file a civil action, including a petition for a writ of habeas corpus or an appeal of a judgment in a civil action, without prepayment of a filing fee, shall submit an affidavit to the court requesting to proceed as an indigent. The affidavit shall be accompanied by a certified copy of the inmate's trust fund account statement for the six-month period immediately preceding the filing of the civil action.

B. If the court allows the inmate to proceed as an indigent, the inmate shall still be required to pay the full amount of the filing fee. The court shall assess and collect an initial, partial filing fee that is twenty percent of the average monthly deposits to the inmate's trust fund account or the average monthly balance in the inmate's trust fund account for the six-month period immediately preceding the inmate's filing of a civil action, whichever amount is greater. Following payment of the initial, partial filing fee, the inmate shall be required to make monthly payments that equal twenty percent of the average monthly deposits to the inmate's trust fund account for the six-month period immediately preceding the inmate's filing of the civil action. The correctional facility where the inmate is incarcerated shall forward the monthly payments from the inmate's trust fund account to the clerk of the court until the filing fee is paid in full.

C. Notwithstanding the provisions of Subsection B of this section, an inmate shall not be prohibited from filing a civil action because the inmate does not have the means to pay an initial, partial filing fee. In no event shall the amount of the filing fee collected from an inmate exceed the amount of a filing fee for a civil action that is authorized by statute or court rule.

D. Notwithstanding the payment or partial payment of a filing fee by an inmate, the court on its own motion or on the motion of a party shall dismiss a complaint initiated by an inmate in a civil action if the court determines that:

(1) the inmate's affidavit alleging indigency is false; or

(2) the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted or seeks damages from a defendant who is immune from an action for damages.

E. If an inmate files a civil action in which the inmate seeks damages from a governmental entity or an officer or employee of a governmental entity, the court shall review the complaint as soon as possible after entering the civil action on its docket. On review, the court shall dismiss the complaint or any portion of the complaint if the court determines that the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted or seeks damages from a defendant who is immune from an action for damages.

F. If an inmate has, on three or more previous occasions, initiated a civil action while incarcerated in this state, and those complaints were dismissed on the grounds that the complaints were frivolous, malicious or failed to state a claim upon which relief could be granted, the inmate shall not be allowed to file additional civil actions. Notwithstanding the provisions of this subsection, an inmate may be allowed to file a civil action if:

(1) the inmate is in imminent danger of serious physical injury; or

(2) an attorney licensed in this state certifies that the civil action states a cognizable claim and that there is a sound basis in fact and law for filing the civil action.

G. An inmate shall not be allowed to file a civil action that alleges mental or emotional injuries suffered while the inmate was incarcerated, unless the inmate offers proof of a physical injury.

H. An inmate shall not be allowed to represent another inmate in a civil action, unless the court finds there is good cause for the representation and states that finding in the record of the proceedings.

I. Pretrial proceedings for a civil action initiated by an inmate shall, to the extent that is practicable, be conducted by telephone or video conference at the correctional facility where the inmate is incarcerated.

J. Damages awarded to an inmate pursuant to a civil action initiated by the inmate shall be held in escrow by the court until the court determines if outstanding restitution orders are pending against the inmate. If the court determines that outstanding restitution orders are pending against the inmate, the court shall order that the damages awarded to the inmate in the civil action be used to satisfy the amount owed pursuant to the restitution orders. After the restitution orders are satisfied, any additional amount remaining from the damages awarded to the inmate shall be forwarded to the correctional facility where the inmate is incarcerated or was most recently incarcerated prior to his release and that amount shall be applied to the reasonable cost of incarcerating the inmate. After the reasonable costs of incarcerating the inmate are satisfied, any additional amount remaining from the damages awarded to the inmate shall be credited to the inmate's trust fund account or provided to the former inmate if he has been released from custody.

Section 2. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 1999.