A White Man's Hand Placing A White Letter Enveloper In A Metal Mail Box Painted White

March 7, 2024 – The proper remedy for a prisoner’s failure to timely submit all the documents required to file a writ of certiorari is dismissal of the writ, the Wisconsin Court of Appeals has ruled in Mitchell v. Buesgen, 2022 AP1076 (Feb. 22, 2024)

Artillis Mitchell, an inmate at Stanley Correctional Institute, received a misconduct report in September 2021.

A disciplinary committee found Stanely guilty of the two violations and imposed disciplinary separation, as well as restitution. Mitchell appealed but the warden denied the appeal.

Mitchell then filed an administrative complaint through the inmate review system.

On March 16, 2022, the secretary of the Department of Corrections (DOC) dismissed Mitchell’s appeal of the denial of his complaint.

Documents Filed

Mitchell sought certiorari review with the Dane County Circuit Court. On April 22, 2022, he placed the following documents in a prison mailbox:

  • a petition for a writ of certiorari;

  • a proposed writ;

  • a petition for an order waiving the pre-payment of costs and fees;

  • an affidavit of indigency; and

  • an authorization that DOC could pay the filing costs and fees from Mitchell’s prison trust account.

Also among the documents was a certification by the state Department of Justice (DOJ) that Mitchell had not pursued three prior dismissed civil cases of the kind listed in Wis Stat. sections 801.02(7)(d) and 802.05(4)(b)1.4.

Mitchell included the certification because under sections 810.02(7)(d) and 814.29(1m)(c), a prisoner who pursued three prior dismissed civil cases may not obtain a waiver of the pre-payment of costs and fees.

Jeff M. Brown
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.

Court Dismisses Writ Petition

On April 29, an attorney representing the Dane County Clerk of Circuit Court mailed Mitchell a letter saying that the clerk’s office had received the documents but had not filed them because Mitchell hadn’t submitted all the documents required by state law.

Mitchell submitted additional documents, related to the DOC administrative process, to the circuit court on May 5 and 10, 2022.

Those documents were among the documents which section 801.02(7)(c) required Mitchell to submit as part of his writ application.

On May 17, 2022, the circuit court granted Mitchell’s request for waiver of pre-payment of costs and fees, and the writ petition was deemed filed.

On May 20, 2022, the circuit dismissed Mitchell’s writ action after concluding that Mitchell failed to state a claim because he hadn’t submitted all the required documents by May 2, when the 45-day limitation period set by section 893.735(2) ran out.

Mitchell appealed.

Statute Tolled?

On appeal, Mitchell argued that the running of the 45-day limitation was equitably tolled by the submissions to the circuit court that he made before May 2, 2022, up until May 17, 2022 – the date the clerk deemed the writ petition as having been filed.

In support of that argument, Mitchell cited the following:

  • he timely submitted all documents necessary to respond to his waiver-of-prepayment-of-fees request, except for the trust account statement;

  • he requested a copy of the trust account statement – a document that was beyond his control; and

  • the documents that are required by section 801.02(7)(c) but which he failed to submit before May 2 were of no consequence.

Judge Blanchard began his opinion for a three-judge panel by noting that section 893.735(3) states that a certiorari action “is commenced at the time that the prisoner files a petition seeking a writ of certiorari with a court.”

Blanchard acknowledged that that subsection’s use of the word “files” could appear to mean that a writ petition is submitted for purposes of section 893.735(2) when a circuit court clerk stamps the petition as “filed.”

But he explained that under Wisconsin Court of Appeals caselaw, filing for purposes of section 893.735(3) occurs when a prisoner has put all the documents required for a writ petition in the prison mailbox.

Blanchard explained that the 45-day limit is tolled when: 1) a prisoner puts all the required documents in a prison mailbox; and 2) he or she has requested all the required documents that he or she has no control over.

Judge Blanchard pointed out that Mitchell conceded that: 1) he had control over all the required documents before the 45-day period ran out on May 2; and 2) he didn’t submit the last of the required documents until May 10.

Failure Not Inconsequential

Mitchell argued that his failure to submit all the required documents by May 2 was inconsequential because the two DOJ documents about the administrative process that he submitted before May 2 proved that he had exhausted all his administrative remedies.

But that fact was immaterial, Blanchard reasoned, because the relevant statute was unambiguous.

“Section 801.02(7)(c) uses expansive, unqualified language that on its face represents a legislative determination that a submission must timely include all such documents, not only those proving exhaustion-in-fact,” Judge Blanchard wrote.

Read Statutes in Context

Mitchell argued that under section 801.02(7)(c), a prisoner’s failure to submit the documents required for filing a writ of certiorari obligates a court only to “deny a prisoner’s request to proceed without the pre-payment of fees and costs or if the prisoner has failed to exhaust all available administrative remedies” – not dismissal of the writ petition itself.

Mitchell pointed to section 801.02(7)(d), which specifically authorizes the dismissal of a writ petition if the prisoner seeks a waiver of pre-payment of fees but has pursued three prior dismissed civil cases.

Judge Blanchard reasoned that when viewed in context, the two subsections did not set forth the only adverse consequence for failing to timely submit all the documents required by subsection (c).

The relevant wording from section 801.02(7)(c), Blanchard wrote, “must be understood in the context of the combined meaning of Wis. Stat. sections 893.735(2)-(3) and 801.02(7)(c), which we have explained is that, in order to ‘commence’ a writ action, a prisoner ‘shall,’ within 45 days of accrual, ‘include, as part of the initial pleading’ ‘all written materials’ involved in the administrative proceedings that the prisoner has to pursue before seeking the writ.”

The Court of Appeals affirmed the circuit court’s order and dismissed Mitchell’s action.