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Order On Prisoners Petition For Waiver Of Prepayment Of Fees-Costs CV-439 - Wisconsin
| Order On Prisoners Petition For Waiver Of Prepayment Of Fees-Costs Form. This is a Wisconsin form and can be used in Civil Circuit Court Statewide . |
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FORM SUMMARY Name of Form: Order on Prisoners Petition for Waiver of Prepayment of Fees/Costs Form Number: CV-439 Statutory Reference: 814.29, Wisconsin Statutes Benchbook Reference: CV 46-3 Purpose of Form: Order by the judge on whether the petitioner has met the requirements to proceed without prepayment of filing and service fees/costs. Who Completes It: Judge Distribution of Form: Original to clerk of court, copy to prisoner, copy to Department of Corrections and Department of Justice. Accompanying Forms: If the affidavit of indigency is granted or conditionally granted, the clerk of court will authenticate the copies for service on the defendants/respondents and send them back to the prisoner. If denied, the clerk of court will not authenticate the copies for service but will return them to the prisoner. The prisoner can then decide if he/she wishes to pay the fees and costs with his/her own money. Regardless of whether the petition is granted or denied, a copy of the order should be sent to the Department of Justice and Department of Corrections. The other copy of the affidavit of indigency and accompanying documentation should be sent to the Department of Justice with its copy of the order. New Form/Modification: Modification, last update 5/01. Modifications: Added word prepayment to title, which now reads Order on Prisoners Petition for Waiver of Prepayment of Fee/Costs. Comments: The new prison litigation law (1997 Wisconsin Act 133) became effective September 1, 1998. This law creates significantly different procedural requirements for a prisoner seeking to commence an action or special proceeding without prepayment of filing fees, costs, or security for costs. Because of the different decisions that must be made by the court, this specialized form must be used in lieu of: CV-410, the general Petition for Waiver of Fees/Costs--Affidavit of Indigency and Order, and, CV-441, the Order on Prisoners Petition for Waiver of Fees/Costs Based on Imminent Danger. This form is to be used when the prisoner is not making any claim that he/she is in imminent danger of serious physical harm. (CV-441 is used when there is a claim of imminent danger of serious physical harm). A prisoner who is not making a claim of imminent danger of serious physical harm is required to comply with the requirements to provide a certified copy of her/his trust account statement and is not exempt from the "three dismissals" determination. Two major aspects of the new law should be noted: First, there is no "automatic eligibility" for indigency status. The prisoner Date: 12/03/01 Page 1 <<<<<<<<<********>>>>>>>>>>>>> 2 must complete the financial information. Second, any waiver of filing fees or service costs is only temporary. Prisoners will ultimately be required to pay the fees and costs. The courts order directs the Department of Corrections to take certain action with respect to the prisoners trust fund account in order to pay the fees and costs in installments. In order to guide the judge in making the indigency determination, the form has been drafted to follow the steps the judge must consider in the order in which they must be considered. After reviewing the documentation that the prisoner has attached for completeness (see above Document Review Determination), the judge proceeds to the following: Exhaustion of administrative remedies determinati on: The court must determine whether or not the prisoner has exhausted his/her available administrative remedies. If the prisoner has done so, box 3 should be checked and the court should go on to "three dismissals determination." If the prisoner has not fully exhausted all available administrative remedies, box 4 should be checked denying the petition to proceed without prepayment of filing fees and costs. The court is not required to go on to any of the other issues and should return the materials to the prisoner. Three dismissals determination: The court must determine whether or not the prisoner has accumulated "three or more dismissals" as defined in 802.05(3)(b)1-4, Wisconsin Statutes. If the prisoner has three or more such dismissals, the court is required to deny the petition and require prepayment of fees. A dismissal that "counts" in this determination is one in which the court determined that a prior case: was frivolous, as determined under 814.025(3), Wisconsin Statutes, was used for an improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation, was seeking monetary damages from a defendant who is immune from such relief, or, fails to state a claim upon which relief may be granted. This procedural requirement is designed to discourage prisoners who have shown a prior history of improper litigation to file new actions without prepaying the fees. The Department of Justice, pursuant to 802.05(3)(c), Wisconsin Statutes, will be maintaining a database of dismissals that meet the criteria. The Department has created its own form (JD-SL-22) for submission by the prisoner to the court (see above discussion in the "document review determination" section). If the court is satisfied from a review of that certificate that the prisoner has not had three or more dismissals, the judge is to check box 5 and go on to the economic status determination. Date: 12/03/01 Page 2 <<<<<<<<<********>>>>>>>>>>>>> 3 If the court finds that the prisoner has had three or more dismissals, the judge is to check box 6 denying the petition. The court need not go on to the economic status determination and should return the prisoners materials to the prisoner. Economic status determination: If the court reaches the economic status determination, the court should then review the prisoners affidavit of financial information (CV-438), including the certified copy of the prisoners trust fund account, and make a determination of eligibility. A judge has three choices: granting the petition, conditionally granting the petition, or denying the petition. It should be noted that granting the petition, whether outright or conditionally, will still require the prisoner to ultimately pay the filing fee and costs. The legislation is intended to end the "free ride" for prisoners in litigation. Granting the petition. If the court grants the petition, The prisoner can proceed without prepayment of fees and costs. A copy of the form must go to the agency having custody of the prisoners trust fund account to
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