Craigo v. Marshall, s. 16613

• Decision Date: 06 June 1985
• Docket Number: Nos. 16613,16614,s. 16613
• Citation: 175 W.Va. 72,331 S.E.2d 510
• Court: West Virginia Supreme Court
• Parties: Robert Gary CRAIGO v. Fred MARSHALL, et al. David Lee CARR v. Honorable John HEY, Judge, etc.

Page 510

331 S.E.2d 510

175 W.Va. 72

Robert Gary CRAIGO v. Fred MARSHALL, et al.

David Lee CARR v. Honorable John HEY, Judge, etc.

Nos. 16613, 16614.

Supreme Court of Appeals of West Virginia.

Submitted April 23, 1985.

Decided June 6, 1985.

Syllabus by the Court

1. A prisoner may proceed to file a civil action without having a committee appointed pursuant to W.Va.Code, 28-5-33, or using a next friend pursuant to Rule 17(c) of the West Virginia Rules of Civil Procedure. To the extent that Syllabus Point 1 of Waynesboro v. Lopinsky, 116 W.Va. 551, 182 S.E. 283 (1935), expresses a contrary rule, it is overruled.

2. In the absence of an express written waiver of his right to a committee under W.Va.Code, 28-5-36, or a guardian ad litem under Rule 17(c) of the West Virginia Rules of Civil Procedure, a suit cannot be directly maintained against a prisoner.

3. Whether a prisoner may appear at trial is a matter committed to the sound discretion of the trial court which must balance a number of relevant factors. In making this determination the court should take into account the costs and inconvenience of transporting a prisoner from his place of incarceration to the courtroom, any potential danger or security risk which the presence of a particular inmate would pose to the court, the substantiality of the matter at issue, the need for an early determination of the matter, the possibility of delaying trial until the prisoner is released, the probability of success on the merits, the integrity of the correctional system, and the interests of the inmate in presenting his testimony in person rather than by deposition.

Victor A. Barone, Charleston, for petitioners.

Miles C. Cary, Charleston, for respondent Fred Marshall.

No appearance for respondent John Hey, Judge.

MILLER, Justice:

We have consolidated these cases because they involve the same legal issue of whether a prisoner may file a civil action without having a committee appointed. The petitioners, David Carr and Robert Craigo, are both serving sentences in excess of one year at the State penitentiary in Moundsville. In 1984, each of them filed a civil action in the Circuit Court of Kanawha County. Petitioner Carr's suit was a civil action against two residents of Kanawha County who allegedly perpetrated a fraud on him while he was detained in the Kanawha County Jail. Petitioner Craigo's suit was essentially a civil rights action against Charleston city police officials and the mayor of Charleston.

Both civil actions were dismissed, sua sponte, by the circuit court on the ground that W.Va.Code, 28-5-36, prevents inmates from filing suit except through a committee appointed by a county commission pursuant to W.Va.Code, 28-5-33. We believe this to be error. ¹

W.Va.Code, 28-5-33, authorizes the appointment of a committee, on the motion of any interested party, when a person "is confined in the penitentiary of this or any other state, or of the United States, under sentence for one year or more, or to suffer death." W.Va.Code, 28-5-36, provides that a committee may sue and be sued on behalf of a convict for all causes of action which he might sue or be sued upon if he had no such incarceration. ²

In Syllabus Point 1 of Waynesboro v. Lopinsky, 116 W.Va. 551, 182 S.E. 283 (1935), we stated that under W.Va.Code, 28-5-36, prisoners under penitentiary sentence of one year or more must sue or be sued through a duly qualified committee. ³ See also State ex rel. Acton v. Flowers, 154 W.Va. 209, 174 S.E.2d 742 (1970); Craft v. Inland Mut. Ins. Co., 145 W.Va. 670, 116 S.E.2d 385 (1960); Nibert v. Carroll Trucking Co., 139 W.Va. 583, 82 S.E.2d 445 (1954). However, in none of these cases did we actually uphold a dismissal of an action on the ground that no committee had been appointed. ⁴

Our Code provisions were derived from Va.Code 1860, c. 213, §§ 6 and 7, which were enacted to alleviate the harsh common law rule allowing a convict to be sued, but not to appear in court to defend his case or to bring his own actions. See Merchant's Adm'r v. Shry, 116 Va. 437, 82 S.E. 106 (1914). We spoke to this issue in Martin v. Long, 92 W.Va. 624, 627, 115 S.E. 791, 792 (1923), where a convicted felon made a contract while out on bail. In a suit for breach of contract, he contended that the contract was invalid because it was made at a time when he was under a criminal conviction. In rejecting this contention, we stated:

"Whatever may have been the status of such a person at the common law--and we find many expressions even in the early cases which seem to limit the application of the civiliter mortuus idea to particular cases--we think our Constitution (Art. 3, Sec. 18) and statutes (Sec. 4, Chapter 152, Barnes' Code, 1918,), abolishing corruption of blood and forfeiture of estate on conviction of a felony, plainly preserves the property rights of one so convicted. Haynes v. Peterson, 125 Va. 730, 100 S.E. 471, 6 A.L.R. 1456; 2 Kent, Commentaries, p. 386."

Most courts which have recently addressed the issue of whether an incarcerated person may bring a civil action in his own name have concluded that he may do so. See Payne v. Superior Court, 17 Cal.3d 908, 553 P.2d 565, 132 Cal.Rptr. 405 (1976) (in bank); Chesapeake Utilities Corp. v. Hopkins, 340 A.2d 154 (Del.1975); Bilello v. A.J. Eckert Co., 42 A.D.2d 243, 346 N.Y.S.2d 2 (1973); Whisnant v. Byrd, 525 S.W.2d 152 (Tenn.1975); Matter of Bishop, 272 S.C. 306, 251 S.E.2d 748 (1979); Dunn v. Terry, 216 Va. 234, 217 S.E.2d 849 (1975). See generally Special Project, The Collateral Consequences of a Criminal Conviction, 23 Vand.L.Rev. 929, 1023 (1970) (asserting that in most states, a prisoner has the capacity to bring suit in his own name). ⁵

Several rationales have been offered in support of this conclusion. The South Carolina and Virginia courts have taken the position that their statutes regarding suits by a committee or a guardian ad litem are procedural protections for the benefit of the convict and consequently he may waive their protection by electing to sue without the benefit of a committee. Matter of Bishop, supra; Cross v. Sundin, 222 Va. 37, 278 S.E.2d 805 (1981). In Virginia, the same rationale applies when he is sued. If he does not raise the right to have a committee appointed, it is waived. Dunn v. Terry, supra.

The federal courts have held on due process and equal protection grounds that prisoners cannot be denied access to the courts. ⁶ See, e.g., Holman v. Hilton, 712 F.2d 854 (3d Cir.1983); Wimberly v. Rogers, 557 F.2d 671 (9th Cir.1977); Thompson v. Bond, 421 F.Supp. 878 (W.D.Mo.1976); Delorme v. Pierce Freightlines Co., 353 F.Supp. 258 (D.Or.1973). ⁷

There are substantial policy reasons for permitting a convict to bring a suit directly in his own name. First, we have always recognized that a prisoner does not lose his civil rights by virtue of a criminal conviction. Martin v. Long, supra; W.Va.Code, 28-5-36; W.Va. Const. art. 3, § 18. Second, there is no tolling provision in our statute of limitations with regard to a prisoner's claim during the period of his incarceration. It is generally held absent specific provisions to the contrary in a tolling statute, there is no exemption because of imprisonment from a statute of limitations. 51 Am.Jur.2d Limitation of Actions §§ 192 and 193 (1970); Annot., 77 A.L.R.3d 735 (1977). Unless a prisoner is able to bring suit while he is incarcerated, he may lose his cause of action.

A third reason is that with incarceration and its attendant restrictions, it is often difficult if not impossible for a prisoner to secure the appointment of a committee or other representative prior to the running of the applicable statute of limitations. ⁸

Consequently, we conclude that a prisoner may proceed to file a civil action without having a committee appointed pursuant to W.Va.Code, 28-5-33, or using a next friend pursuant to Rule 17(c) of the West Virginia Rules of Civil Procedure. ⁹ In making this rule, we overrule Syllabus Point 1 of Waynesboro, which holds that suits can be brought only by a duly appointed committee.

A different situation prevails, however, when a suit is filed against a convict. In this circumstance, he has not voluntarily elected to participate in the litigation. The policy reasons heretofore mentioned are of diminished applicability. He does not initially seek access to the courts nor does a statute of limitations problem come into play because he is not bringing the cause of action.

In the case of a prisoner bringing his own suit, it is possible to conclude that he has elected to waive the use of a committee, next friend, or guardian. This cannot be said where a prisoner is the defendant. Furthermore, where a prisoner is sued, a lawyer will often be representing the opposing party and this places the prisoner at a considerable disadvantage. We, therefore, conclude that a different rule should obtain where a prisoner is sued. In the absence of an express written waiver of his right to a committee under W.Va.Code, 28-5-36, or a guardian ad litem under Rule 17(c) of the West Virginia Rules of Civil Procedure, such suit cannot be directly maintained against the prisoner.

This rule also reflects the special solicitude shown in Rule 55 of the West Virginia Rules of Civil Procedure relating to prohibiting default judgments against incarcerated convicts who are unrepresented. ¹⁰ Furthermore, this rule comports with Rule 17(c) of the West Virginia Rules of Civil Procedure, which requires that "[t]he court or clerk shall appoint a discreet and competent attorney at law as guardian ad litem for an infant, incompetent person, or convict otherwise represented in an action." ¹¹

In the case where a prisoner wishes to proceed individually as a plaintiff, or expressly waives his right to a committee or guardian ad litem when sued as a defendant, he is not necessarily entitled to appear personally at any court proceeding in connection with the suit. Almost...