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  • PART III COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES
  • TITLE VI COSTS AND FEES
  • CHAPTER 261 COSTS IN CIVIL ACTIONS
  • Section 29 Court action by inmate; affidavit of indigency; court-ordered payment plan; review and recommendation; penalties for abuse of process

Section 29. (a) If an inmate brings an action in a court of the commonwealth against a state or county agency, official or employee and requests a waiver of filing fees or court costs due to indigency pursuant to section 27B, the court shall require the commissioner of correction or his designee or a county sheriff or his designee to file a copy of a current account statement of the inmate’s account and a copy of the inmate’s activity sheet for the preceding six months.

(b) The inmate shall file a signed affidavit containing the following information: the inmate’s name, social security number, date of birth, inmate identification number and correctional facility; assets including, but not limited to, cash, monies in bank accounts, real property, other investments and all assets of a spouse to which the inmate has legal access; income received in the past six months and income expected to be received in the next six months; liabilities and monthly expenses.

The affidavit shall also state as follows: “I state under the pains and penalties of perjury that the statements made in this affidavit are true, that I have not omitted any assets that are available to me to pay filing fees or court costs, that I have not transferred any assets to avoid payment of filing fees and costs, and that I have not taken any action nor has any action been taken on my behalf relative to any assets in order to avoid having such assets used for payment of filing fees and costs.”

(c) Actions brought by inmates subject to the provisions of subsection (a) shall include all actions arising out of or resulting from a condition of or occurrence during confinement. A petition alleging a claim cognizable under section 1 of chapter 248 shall not be subject to the provisions of this section.

(d)(1) The court shall order the inmate to pay, as a partial payment of any filing fees and court costs, 20 per cent of the preceding six months’ average balance in the inmate’s account and, thereafter, monthly payments of 10 per cent of the average monthly balance in the inmate’s account, until all such fees are paid, provided that the payment amount to be drawn from the inmate’s account is equal to or greater than $10.

(2) The court shall issue such an order unless it finds that the inmate is incapable of making payments under such a plan or if the court determines, at any time, that such order imposes an undue administrative burden upon the court.

(3) Upon receipt of a copy of the court’s order, the inmate shall forward a copy of the order to the commissioner of correction or to the county sheriff and to the superintendent of the correctional facility having custody over the inmate along with a written request for an initial payment from the inmate’s account to be paid to the court. The inmate shall forward to the commissioner or the county sheriff and the superintendent a true copy of the written request for payment to the court from the inmate’s account not later than ten working days prior to the date each monthly payment is due.

(4) The superintendent shall withdraw such payments as the order requires and shall forward them to the clerk of the appropriate court. The court may, on its own or on motion of either or both parties, dismiss a claim at any time if the inmate fails to request payment from the superintendent or otherwise fails to pay filing fees as ordered by the court.

(e) The court may appoint a master to review inmate claims of indigency and make recommendations to the court. The court or master may conduct a hearing on the inmate’s claim of indigency either before or after service of process and may dismiss a claim or action if the court finds that the allegation of indigency is untrue. Any hearing on an inmate’s claim of indigency shall be conducted telephonically unless the court finds that a hearing in court is necessary.

(f) In addition to any other actions or penalties that may be available by law, if, after hearing, the court finds that the affidavit submitted by the inmate contains false information or omits material information and if the court further finds that the misrepresentation or omission was intentional, the court may impose costs on the inmate. If, after hearing, the court finds that the affidavit is frivolous and filed in bad faith in order to abuse the judicial process, the court shall order that the inmate lose up to 60 days of good conduct credit earned or to be earned pursuant to section 129C or 129D of chapter 127.