source: Caselaw Access Project

author:
WILLIAM A. BABLITCH,
      SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE JON E WILCOX, J.

license: Public Domain

text:
    State of Wisconsin ex rel. Quintin D. L'Minggio, Petitioner-Appellant-Petitioner, v. Jane Gamble and Gerald Berge, Respondents-Respondents.
    Supreme Court

      No. 01-0535.

      Oral argument December 3, 2002.

    Decided July 2, 2003.

    2003 WI 82
    (Also reported in 667 N.W.2d 1.)

      For the petitioner-appellant-petitioner there were briefs by Colleen D. Ball, Sarah A. Huck, and Reinhart Boerner Van Deuren S.C., Milwaukee, and oral argument by Colleen Ball.

    For the respondents-respondents the cause was argued by Corey F. Finkelmeyer, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   WILLIAM A. BABLITCH,

¶ 1. J. Quintin LMinggio (L'Minggio) petitioned this court for review of a court of appeals' decision that upheld a circuit court's dismissal of L'Minggio's challenge to a prison disciplinary hearing. The circuit court construed L'Minggio's petition for habeas corpus as a petition for certiorari and dismissed it as untimely under Wis. Stat. §893.735(2) (1999-2000). The court of appeals affirmed the dismissal of L'Minggio's action, but on the grounds that L'Minggio failed to exhaust his administrative remedies as required by Wis. Stat. § 801.02(7)(b) and Wis. Admin. Code § DOC 310.04 (Apr., 1998).

¶ 2. We conclude that L'Minggio's petition was properly construed as an action for certiorari rather than habeas corpus since a writ of certiorari provides L'Minggio with an adequate remedy in the law and has historically been used to challenge prison disciplinary decisions. We also conclude that L'Minggio exhausted his administrative remedies by satisfying the requirements under Wis. Admin. Code § DOC 310.04. Since the Department of Corrections (Department) failed to provide notice to L'Minggio of any further appeal rights when his inmate complaint was rejected, we conclude that the Department is estopped from claiming that L'Minggio failed to exhaust his administrative remedies in this case. Accordingly, we reverse the decision of the court of appeals and remand the matter to the circuit court for Dane County for proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

¶ 3. On February 15, 2000, prison officials at the Kettle Moraine Correctional Institution issued L'Minggio a conduct report for allegedly participating in gang activity and planning to assault prison staff. On February 24, 2000, a prison adjustment committee found L'Minggio guilty of violating administrative rules against group resistance and conspiracy to commit battery. The adjustment committee stated that it relied upon the following factors in reaching its decision: (1) the person who prepared the report had been a reliable investigator in the past; (2) there were five notarized witness statements regarding L'Minggio's involvement in the alleged incident; and (3) L'Minggio's witnesses had no knowledge of the incident. The adjustment committee imposed eight days of adjustment segregation and three years of program segregation.

¶ 4. L'Minggio appealed the adjustment committee's decision to the program review committee, arguing that he was denied his due process rights to a fair and impartial hearing; that he did not have an impartial adjudicator; and that he was denied the opportunity to present and question witnesses on his behalf. The program review committee rejected L'Minggio's arguments and found him guilty of the charges, which resulted in transferring L'Minggio to the Wisconsin Secure Program Facility in Grant County for three years.

¶ 5. L'Minggio appealed the- disciplinary determination to the warden, who affirmed the decision on March 6, 2000. After attempting to appeal the warden's decision to the Secretary of the Department of Corrections, L'Minggio filed an inmate complaint regarding the disciplinary proceeding on June 12, 2000. The next day, the Inmate Complaint Examiner (ICE) rejected L'Minggio's complaint as untimely because it was not filed within 14 days of the incident, as required under Wis. Admin. Code § DOC 310.09(3). L'Minggio claims that he received the ICE's rejection on June 21, 2000.

¶ 6. L'Minggio next attempted to seek judicial review by petitioning for a writ of habeas corpus in the Dane County Circuit Court. L'Minggio's petition was returned to him along with a letter dated August 3, 2000, explaining that certain documents were missing from his submission and that habeas corpus actions should be venued in the county of confinement.

¶ 7. On August 31, 2000, L'Minggio mailed another document labeled as a petition for a writ of habeas corpus to the circuit court in Grant County, the county where L'Minggio was incarcerated. Upon review, the Grant County Circuit Court, George S. Curry, Judge, construed L'Minggio's action as a petition for certiorari, rather than habeas corpus, and transferred the case to Dane County in accordance with the venue provision of Wis. Stat. § 801.50(3). The Dane County Circuit Court, Gerald C. Nichol, Judge, agreed that the action was properly construed as a petition for certio-rari, but dismissed it as untimely under Wis. Stat. § 893.735(2). The Dane County Circuit Court determined that L'Minggio's cause of action accrued on March 23, 2000, which was the date L'Minggio received the warden's response to his administrative appeal; therefore, L'Minggio did not file his petition within the 45-day deadline required under § 893.735(2).

¶ 8. In an unpublished per curiam decision, the court of appeals affirmed the Dane County Circuit Court's dismissal of L'Minggio's action, but on different grounds. The court of appeals disagreed with the Dane County Circuit Court that the 45-day time limit for L'Minggio's certiorari action started to run with the warden's decision; however, the court of appeals concluded that L'Minggio was barred from seeking judicial review because he failed to exhaust his administrative remedies.

¶ 9. In reviewing the dismissal of L'Minggio's challenge to his prison disciplinary hearing, we address the following issues: (1) whether L'Minggio exhausted his administrative remedies as required under Wis. Admin. Code § DOC 310.04 and (2) whether L'Minggio's petition was properly construed as an action for certio-rari rather than habeas corpus.

II. STANDARD OF REVIEW

¶ 10. To determine whether L'Minggio's petition was properly construed as an action for certiorari instead of an action for habeas corpus poses a question of law that this court reviews de novo. State ex rel. Woods v. Morgan, 224 Wis. 2d 534, 537, 591 N.W.2d 922 (Ct. App. 1999).

¶ 11. The examination of whether L'Minggio exhausted his administrative remedies involves the interpretation and application of chapter 310 of the Wisconsin Administrative Code. The interpretation of an administrative regulation is a question of law that this court reviews de novo. In re Marriage of Brown v. Brown, 177 Wis. 2d 512, 516, 503 N.W.2d 280 (Ct. App. 1993).

III. ANALYSIS

A. Exhaustion of Remedies

¶ 12. We first address whether L'Minggio exhausted his administrative remedies under chapter 310 of the Wisconsin Administrative Code. The exhaustion of administrative remedies is required pursuant to Wisconsin's Prisoner Litigation Reform Act, Wis. Stat. § 801.02(7)(b), and Wis. Admin. Code. § DOC 310.04. Under § DOC 310.04, if an inmate wishes to challenge the procedures used by an adjustment committee or a hearing officer in a prison disciplinary action, he or she must appeal to the warden under § DOC 303.76 and file an inmate complaint under § DOC 310.08(3), in order to exhaust his or her administrative remedies. L'Minggio fulfilled the first requirement by appealing the adjustment committee's decision to the warden in accordance with § DOC 303.76. L'Minggio also satisfied the second requirement by filing an inmate complaint pursuant to § DOC 310.08(3); however, the ICE rejected his complaint as untimely.

¶ 13. The ICE rejection letter received by L'Minggio declared his complaint "rejected" because the complaint was not filed within 14 calendar days of the incident as required under Wis. Admin. Code § DOC 310.09(3). However, the rejection letter provided no information as to whether L'Minggio could appeal the ICE's rejection of his complaint or if there was a further step that L'Minggio would have to take in order to exhaust his administrative remedies.

¶ 14. In contrast, prior ICE decision letters received by L'Minggio regarding other complaints, which had been dismissed on the merits, explicitly provided notice that "[i]f you are adversely affected by the decision, you have 10 calendar days to appeal the decision to the Corrections Complaint Examiner. Form (DOC-405) for such an appeal may be obtained from the Institution Complaint Examiner." No such notice was provided in the ICE decision letter in this case, which rejected L'Minggio's complaint for untimeliness.

¶ 15. The Department's failure to advise L'Minggio that he could appeal the ICE's rejection of his complaint estops the Department from claiming that L'Minggio failed to exhaust his administrative remedies. Although L'Minggio's complaint was rejected by the ICE as untimely, L'Minggio was neither aware of nor informed that there were any further steps in the administrative process. Therefore, we hold that L'Minggio exhausted his administrative remedies by following the express directives under Wis. Admin. Code § DOC 310.04 by (1) appealing the adjustment committee's decision to the warden and (2) filing an inmate complaint.

B. Petition for Certiorari versus Habeas Corpus

¶ 16. We next address whether L'Minggio's petition was properly construed as an action for certiorari rather than for a writ of habeas corpus. At the outset, we note that it is well-settled that pro se complaints are to be liberally construed to determine if the complaint states any facts that can give rise to a cause of action. bin-Rilla v. Israel, 113 Wis. 2d 514, 520, 335 N.W.2d 384 (1983). Therefore, a court should not deny a prisoner's pleading based on its label rather than its allegations. Id. at 521.

¶ 17. The writ of habeas corpus arises out of the common law and is guaranteed by both the Wisconsin and federal constitutions as well as state and federal statutes. Although habeas corpus typically arises out of a criminal proceeding, it is a separate civil action that is founded on principles of equity. State ex rel. Fuentes v. Court of Appeals, 225 Wis. 2d 446, 450, 593 N.W.2d 48 (1999) (citing State ex rel. Korne v. Wolke, 79 Wis. 2d 22, 26, 255 N.W.2d 446 (1977); State ex rel. Durner v. Huegin, 110 Wis. 189, 220, 85 N.W. 1046 (1901)).

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¶ 18. Habeas corpus is an extraordinary writ that is only available to a petitioner under limited circumstances. State ex rel. Haas v. McReynolds, 2002 WI 43, ¶ 12, 252 Wis. 2d 133, 643 N.W.2d 771. A petitioner who seeks habeas corpus relief is required to meet certain criteria. First, a petitioner must be restrained of his or her liberty. Fuentes, 225 Wis. 2d at 451. Second, a petitioner must show that the restraint was imposed by a tribunal without jurisdiction or that the restraint was imposed contrary to constitutional protections. Id. Third, a petitioner must demonstrate that there was no other adequate remedy available in the law. Id.

¶ 19. This court has not addressed whether ha-beas corpus may ever constitute the proper remedy for a claim that a prisoner's constitutional rights have been abridged by conditions of confinement. bin-Rilla, 113 Wis. 2d at 524. "Conditions of confinement" have been described as claimed denials of rights after a sentence is imposed when an individual is in custody. Id. at 518. In bin-Rilla, we concluded that the appropriate remedy for a prisoner's claim of illegal conditions of confinement was not release from custody, but rather a judicially mandated change in the illegal conditions or an injunction against the practices and possibly a damages award. Id. at 522.

¶ 20. In contrast to a petition for habeas relief, a court that is petitioned for a writ of certiorari regarding a decision by a prison adjustment committee determines: (1) whether the committee kept within its jurisdiction; (2) whether the committee acted according to law; (3) whether the committee's action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the determination in question. State ex rel. Hoover v. Gagnon, 124 Wis. 2d 135, 140, 368 N.W.2d 657 (1985). A certiorari court is limited to reviewing the record and cannot consider additional facts outside of the record. State ex rel. Richards v. Leik, 175 Wis. 2d 446, 455, 499 N.W.2d 276 (Ct. App. 1993) (citing State ex rel. Lomax v. Leik, 154 Wis. 2d 735, 739-40, 454 N.W.2d 18 (Ct. App. 1990); State ex rel. Hippler v. City of Baraboo, 47 Wis. 2d 603, 614-15, 178 N.W.2d 1 (1970)).

¶ 21. Even though this court has not determined whether alleged illegal conditions of confinement may ever be challenged via habeas corpus, "[c]ertiorari is the well-established mode of judicial review for inmates . . . who seek to challenge prison disciplinary decisions." State ex rel. Curtis v. Litscher, 2002 WI App 172, ¶ 12, 256 Wis. 2d 787, 650 N.W.2d 43. The challenge of prison disciplinary decisions via a writ of certiorari is supported by a body of Wisconsin case law. See, e.g., State ex rel. Staples v. DHSS, 115 Wis. 2d 363, 340 N.W.2d 194 (1983); Casteel v. Kolb, 176 Wis. 2d 440, 500 N.W.2d 400 (Ct. App. 1993); Richards, 175 Wis. 2d at 449-50; State ex rel. Irby v. Israel, 95 Wis. 2d 697, 702-03, 291 N.W.2d 643 (Ct. App. 1980); State ex rel. Meeks v. Gagnon, 95 Wis. 2d 115, 119, 289 N.W.2d 357 (Ct. App. 1980).

¶ 22. As a challenge to a prison disciplinary action, L'Minggio's claims can be adequately addressed by a certiorari action. In appealing the adjustment committee's decision, L'Minggio argued that he was denied his due process rights to a fair and impartial hearing; that he did not have an impartial adjudicator; and that he was denied the opportunity to present and question witnesses on his behalf. A certiorari court could review the record with respect to L'Minggio's claims to determine whether the adjustment committee acted according to law, whether its actions were arbitrary, oppressive or unreasonable, and whether the evidence was such that it might have reasonably made the determination in question.

¶ 23. Judicial review of whether a prison adjustment committee acted according to law includes reviewing whether the committee followed its own rules governing the conduct of its hearings. Meeks, 95 Wis. 2d at 119. If there is evidence that is contrary to a committee's decision that indisputably establishes a fact, then the committee's decision constitutes a violation of law that may be reached by certiorari. State ex rel. Heller v. Lawler, 103 Wis. 460, 465, 79 N.W. 777 (1899). For example, the court of appeals has held on certiorari review that a hearing examiner, who had witnessed a riot and hostage situation, and then participated in the resulting prison disciplinary proceeding, should have been disqualified from the proceeding under one of the Department's own administrative rules, Wis. Admin. Code § DOC 303.82(2). Curtis, 256 Wis. 2d 787, ¶ 20.

¶ 24. Nevertheless, L'Minggio asserts that certio-rari is not an adequate remedy in this case because he received affidavits from witnesses who recanted their accusations, which were not before the adjustment committee when it made its decision, and are therefore not part of the record. While L'Minggio is correct that facts outside the record are not considered in a certio-rari review, these affidavits can be taken into account, albeit indirectly, under Wis. Admin. Code § DOC 310.09(3). Section DOC 310.09(3) provides that "the institution complaint examiner [ICE] may accept a late complaint for good cause." § DOC 310.09(3) (emphasis added). It is arguable that these affidavits, which were not before the adjustment committee, could constitute "good cause" for allowing a late complaint. Therefore, a certiorari court could consider whether the ICE acted according to law and whether its actions were unreasonable, arbitrary or oppressive when it rejected L'Minggio's complaint for untimeliness, despite the fact that L'Minggio received affidavits from witnesses, who had withdrawn their accusations after the adjustment committee had already made its decision. If a certiorari court finds that an adjustment committee did not act according to law or acted unreasonably, arbitrary or oppressive, then it may vacate the committee's decision and remit the punishment imposed. See, e.g., Irby v. Macht, 184 Wis. 2d 831, 847-48, 522 N.W.2d 9 (1994); Santiago v. Ware, 205 Wis. 2d 295, 337-38, 556 N.W.2d 356 (Ct. App. 1996).

¶ 25. Accordingly, since L'Minggio has an adequate remedy via a writ of certiorari and since prison disciplinary actions have been customarily addressed as certiorari actions, we hold that L'Minggio's petition for a writ of habeas corpus was properly construed as a petition for certiorari. Furthermore, similar to our determination in bin-Rilla, we conclude that a circuit court is a more appropriate forum than an appellate court to make the kind of factual inquiry that may be necessary to review L'Minggio's claims. bin-Rilla, 113 Wis. 2d at 523. Therefore, we conclude that L'Minggio's petition for certiorari should be transferred to the circuit court for Dane County for appropriate proceedings.

¶ 26. Finally, we briefly address whether L'Minggio's petition for certiorari was filed within the 45-day deadline as required by Wis. Stat. § 893.735(2). Under § 893.735(2), the 45-day time period begins on the date of the decision or disposition, but may be extended to the date an inmate receives actual notice of the decision or disposition. The Dane County Circuit Court determined that L'Minggio's cause of action accrued on March 23, 2000 — the date L'Minggio received the warden's response to his administrative appeal. The Dane County Circuit Court concluded that L'Minggio did not file his petition within the 45-day deadline because he did not mail his petition until almost five months later, in August of 2000. However, the court of appeals disagreed with the circuit court's analysis and ruled that the 45-day time limit for filing a certiorari action is tolled while an inmate pursues a complaint through the Inmate Complaint Review System, citing State ex rel. Frasch v. Cooke, 224 Wis. 2d 791, 592 N.W.2d 304 (Ct. App. 1999). In Frasch, the court of appeals stated that "certiorari review could not be granted on any issue .. . until after [an] ICRS review of the procedural issues." Id. at 796. See also State ex rel. Purifoy v. Malone, 2002 WI App 151, ¶¶ 9-12, 256 Wis. 2d 98, 648 N.W.2d 1 (45-day deadline under § 893.735(2) was tolled while inmate pursued and exhausted administrative remedies).

¶ 27. In this case, L'Minggio claims that he received the ICE's rejection letter of his complaint on June 21, 2000; hence, the 45-day time limit began to run as of June 21, 2000. Therefore, in order for L'Minggio's petition to be timely, it must have been filed before August 5, 2000. L'Minggio asserts that he placed the materials for his petition in the prison mailbox system on August 1, 2000, which were received by the Dane County Circuit Court around August 3, 2000. Accordingly, since L'Minggio's petition was filed before August 5, 2000, his petition was timely.

¶ 28. Even if the 45-day time period did not begin to toll until June 21, 2000, the Dane County Circuit Court also noted that L'Minggio's petition was incomplete. This court has stated that a "tolling rule will not excuse a pro se prisoner who ultimately fails to pay filing fees, address the petition properly, or otherwise comply with filing requirements." State ex rel. Nichols v. Litscher, 2001 WI 119, ¶ 27, 247 Wis. 2d 1013, 635 N.W.2d 292. L'Minggio claims that his incomplete petition was not his fault, but rather was due to the "vagaries of the mail." L'Minggio explains that he placed his certiorari petition materials in two envelopes that were taped together, and which unfortunately became separated in the mailing process.

¶ 29. If L'Minggio can present proof by affidavit or another evidentiary submission that he placed both envelopes (i.e. a complete petition) in the prison mailbox system before August 5, 2000, and otherwise complied with the filing requirements, then his filing might be acceptable in light of the tolling rule for pro se prisoners. State ex rel. Shimkus v. Sondalle, 2000 WI App 262, ¶ 14, 240 Wis. 2d 310, 622 N.W.2d 763. With respect to certiorari petitions, the tolling rule provides that "when a prison inmate places a certiorari petition in the institution's mailbox for forwarding to the circuit court, the forty-five day time limit in Wis. Stat. § 893.735(2) is tolled." State ex rel. Shimkus v. Sondalle, 2000 WI App 238, ¶ 14, 239 Wis. 2d 327, 620 N.W.2d 409; see also Nichols, 247 Wis. 2d 1013, ¶ 24. We conclude that if L'Minggio can provide evidence that he complied with the filing requirements for a petition for certiorari by depositing the proper materials for his petition in the prison mailbox system prior to August 5, 2000, then his petition for certiorari may be deemed timely filed under § 893.735(2).

¶ 30. In sum, we conclude that L'Minggio exhausted his administrative remedies by fulfilling the two requirements under Wis. Admin. Code § DOC 310.04 of appealing to the warden and filing an inmate complaint. Because L'Minggio was never informed or notified that he could appeal the ICE's rejection of his inmate complaint, L'Minggio effectively exhausted his administrative remedies as required under Wis. Stat. § 801.02(7)(b) and § DOC 310.04. Furthermore, we hold that L'Minggio's petition was properly construed as an action for certiorari instead of habeas corpus since a writ of certiorari provides L'Minggio an adequate remedy in the law and has historically been used to challenge prison disciplinary decisions. Accordingly, we remand the cause to the circuit court for Dane County for appropriate proceedings.

By the Court. — The decision of the court of appeals is reversed, and the cause is remanded to the circuit court for Dane County for further proceedings consistent with this opinion.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 31. (concurring). The majority declines the opportunity presented by this case to decide whether a writ of habeas corpus may ever constitute the proper remedy for a claim that a prisoner's constitutional rights have been abridged by conditions of confinement. The majority concludes that the petitioner's claims can be adequately addressed by a certiorari action and therefore it need not reach the issue of habeas corpus.

¶ 32. I write separately because I am concerned that the adequacy of relief under a writ of certiorari is an illusion in this case.

¶ 33. The petitioner's claim is premised on the fact that he has affidavits from witnesses who withdrew their accusations against him after the adjustment committee made its decision. A court will thus be able to determine whether the defendant's constitutional rights were violated only if it considers the affidavits of these witnesses. As the majority admits, however, a certiorari court can consider these affidavits only "indirectly," if it finds that the ICE did not act according to law or that its actions were unreasonable when it rejected the petitioner's complaint for untimeliness in the face of these affidavits.

¶ 34. In addition, the petitioner's certiorari action need be heard only if it was timely filed. There is a factual dispute in the present case regarding whether the petitioner mailed his completed petition for "certio-rari" before August 5, 2001. The majority puts the burden on the petitioner to provide evidence that he put his petition in the prison mailbox system prior to August 5, 2000, indicating that an affidavit or other evidentiary submission "might be acceptable."

¶ 35. These two hurdles are not insignificant for the petitioner and raise questions about the adequacy of certiorari as an avenue for relief in this case.

¶ 36. For the foregoing reasons, I write separately.

JON E WILCOX, J.

¶ 37. (concurring in part, dissenting in part). I agree with the court's conclusion that if L'Minggio exhausted his remedies, the appropriate judicial mechanism for dealing with his claims is a writ of certiorari. However, I disagree with the court's determination that L'Minggio exhausted the available administrative remedies. The court's decision suggests that because there was no notice of appeal rights on the actual rejection letter L'Minggio received, he should be excused from any additional steps in the required process. I must disagree. Chapter 310 of the Wisconsin Administrative Code clearly describes the procedures inmates are required to complete before heading into court. L'Minggio failed to complete this process. For that reason, I respectfully dissent from the judgment of this court.

¶ 38. As the majority finds, L'Minggio was required to exhaust his administrative remedies under Wisconsin's Prisoner Litigation Reform Act, Wis. Stat. § 801.02(7)(b), and Wis. Admin. Code § DOC 310.04. Majority opinion, ¶ 12. At least some of L'Minggio's complaints challenged procedures used by an adjustment committee or a hearing officer in a prison disciplinary action. Accordingly, under § DOC 310.04, L'Minggio was required to file both an appeal with the warden under § DOC 303.76 and an inmate complaint under § DOC 310.08(3). See majority opinion, ¶ 12. The majority finds that L'Minggio satisfied both of these requirements. Id. While we agree with the finding that L'Minggio satisfied the first requirement, based on the language of the DOC provisions, we cannot agree that he satisfied the second.

¶ 39. The court holds that L'Minggio satisfied the second requirement for exhausting his remedies by filing a complaint with the Inmate Complaint Examiner (ICE) under § DOC 310.08(3), a complaint that was rejected as untimely. Majority op., ¶ 12. Section DOC 310.08(3) provides:

After exhausting the appeal in s. DOC 302.19, 303.75 or 303.76, an inmate may use the ICRS [Inmate Complaint Review System] to challenge the procedure used by the adjustment committee or hearing officer, by a program review committee, or by any decisionmaker acting on a request for authorized leave.

Because § DOC 310.04 requires the inmate to file a complaint under § DOC 310.08, the "may" in § DOC 310.08 does not mean that the procedure is optional; the inmate must follow the direction set forth in § 310.08 — the inmate must use the ICRS. Section DOC 310.08(3) itself does not describe the required procedures; rather, the section directs the inmate to use the ICRS process.

¶ 40. The ICRS process is laid out in other sections of chapter 310. For example, § DOC 310.06 is titled "Organization of inmate complaint review system," and explains the overall process. Section DOC 310.06 provides that in order to use the complaint system, the inmate is to file a complaint with the ICE under § DOC 310.09 (for individuals) or § DOC 310.10 (for group complaints). L'Minggio filed as an individual, so he was required to follow the procedures in § DOC 310.09. Section DOC 310.09 states clearly that complaints are to be filed within 14 calendar days of an occurrence, but late complaints may be accepted for "good cause." Section DOC 310.11, entitled "Processing complaints at the institution level" states the procedures to be used by the ICE once a complaint is filed. Under § DOC 310.11(11), the ICE is to send a report and recommendation to the appropriate reviewing authority. There are no distinctions made in the section regarding the process to be done. Whatever the recommendation by the ICE, a report and recommendation are to be passed along to the appropriate reviewing authority. Section DOC 310.12 sets out the procedure if this is not done. Under § DOC 310.12(3), "[i]f the complainant does not receive the decision within 23 working days of the ICE's receipt of the complaint, the parties shall consider the complaint dismissed and the complainant may appeal immediately." (Emphasis added.)

¶ 41. Section DOC 310.13(1) provides the next step: "A complainant dissatisfied with a decision may, within 10 calendar days after the date of the decision, appeal that decision by filing a written request for review with the corrections complaint examiner on forms supplied for that purpose." Section DOC 310.14(1) provides the final step in the process: "The corrections complaint examiner (CCE) shall send the written recommendation, along with a copy of the institution complaint file, to the secretary who shall make a decision based on the record within 10 working days following receipt of the recommendation."

¶ 42. This multi-step process is confirmed in § DOC 310.06. As noted, § DOC 310.06(1) directs the inmate to file a complaint. Next, § DOC 310.06(2) describes the ICE's options in dealing with a complaint. Third, § DOC 310.06(3) states that the appropriate reviewing authority will make a decision under § DOC 310.12. Section DOC 310.06(4) then explicitly provides that an inmate may appeal an adverse decision under § DOC 310.13. Finally, under § DOC 310.06(5) and (6), the CCE is to investigate and make a recommendation to the secretary, who shall then review the CCE's report and make a decision.

¶ 43. None of these procedures suggest that there is an exception for complaints "rejected" as untimely. The majority holds in this case that L'Minggio is not required to do anything beyond filing a complaint with the ICE because he was "neither aware of nor informed that there were any further steps in the administrative process." Majority op., ¶ 15. Implicitly, the majority opinion also seems to suggest that a "rejection" for untimeliness is different. It is true that the rejection in this case was different from other ICE decisions LMinggio himself had received. Other letters from the ICE to LMinggio contained an explicit notification of appeal rights. The rejection in this case had no such notification. Nevertheless, the process laid out in the Department's administrative code is clear. These provisions are sufficient notice to an inmate of his or her right to appeal.

¶ 44. This court has found that documents from pro se prisoners are to be liberally construed. See bin-Rilla v. Israel, 113 Wis. 2d 514, 520-21, 335 N.W.2d 384 (1983). However, inmates are required to follow the procedures set out by the Department to exhaust their remedies before attempting to get a remedy in court.

¶ 45. To assure that inmates can follow the procedures, the Department has set guidelines for itself to make the process accessible. Under § DOC 310.05, "[t]he department shall make the written complaint procedure readily available to all inmates." In fact, the Department makes sure every inmate is provided an explanation of the procedures: "The department shall provide each inmate written notification and an oral explanation of the complaint procedures upon arrival at an institution, including instructions on how to file a complaint at the institution." Wis. Admin. Code § DOC 310.05. The record in this case shows that L'Minggio was well aware of the process. L'Minggio's own statements declare that he is a so-called "jailhouse lawyer." Further, in his supplemental appendix to this court, L'Minggio provided, among other documents, a copy of instructions on the complaint process.

¶ 46. Since L'Minggio added these instructions to the record in this case, we assume that L'Minggio had them at his disposal. These instructions state: "The following rules govern the processing of complaints. The Institution Complaint Examiner (ICE) may reject any complaint that does not comply." Number 9 on the list of instructions goes on to explain the procedures:

Your complaint will be acted upon by the ICE who will make a recommendation to the appropriate reviewing authority. If you do not receive the reviewing authority's decision within 23 working days of the date your complaint was acknowledged, you are to consider your complaint denied. If your complaint was denied or if you were not satisfied with the reviewing authority's decision, you may send your appeal to the Corrections Complaint Examiner within 10 calendar days after the receipt of the reviewing authority's decision. Forms may be obtained on the housing unit or from the office of the ICE. The CCE will make a recommendation on your complaint to the Secretary of the Department of Corrections. The Secretary will review the material submitted and render a decision.

(Emphasis added.) These instructions unambiguously provide that the inmate has the right to appeal. While a pro se prisoner may be afforded some leeway in his court filings, an inmate is required to exhaust his or her remedies. The Department of Corrections provides the inmates with the procedures to follow. The onus is, and should be, upon the inmate to be aware of the procedures and follow through with the requirements. L'Minggio did not do so in this case.

¶ 47. I also cannot accept the argument that a "rejection" for untimeliness is different than other types of denial. The pertinent definition listed in the American Heritage Dictionary for the verb "reject" is, "To refuse to consider or grant; deny." American Heritage Dictionary 1522 (3d ed. 1992). The Department provisions clearly allow for an inmate to appeal an adverse decision. Whether you call the complaint rejected, denied, or dismissed, common sense suggests that a "rejected" complaint is a decision by the ICE and is certainly adverse to the inmate. The instructions L'Minggio provided to this court make this point even more profound. Under these instructions, an inmate may appeal if the complaint was "denied" or if the inmate was "not satisfied" with the reviewing authority's decision. This instruction also provides, as does chapter 310, that if the inmate does not receive a decision from the reviewing authority, he or she should assume the complaint is denied, triggering the right to appeal.

¶ 48. Although L'Miriggio was not provided explicit notice of his right to appeal on the rejection from the ICE, inmates are informed of the proper procedures to follow in filing a complaint. This court has found that the Prisoner Litigation Reform Act (PLRA) requires prisoners with certain types of claims must exhaust their administrative remedies before taking their claims to court. See Hensley v. Endicott, 2001 WI 105, ¶ 9, 245 Wis. 2d 607, 629 N.W.2d 686; Cramer v. Court of Appeals, 2000 WI 86, ¶ 20, 236 Wis. 2d 473, 613 N.W.2d 591. This court's decision in Cramer discussed the purposes of the PLRA, noting: "The history of the [PLRA] legislation also reveals that the PLRA was not designed exclusively to restrict frivolous lawsuits but rather to limit broadly prisoner litigation at taxpayers' expense." Cramer, 236 Wis. 2d 473, ¶ 40. While I agree that courts are to liberally construe filings from pro se prisoners, the prisoner has the responsibility to fulfill the requirements of the PLRA. Wisconsin's PLRA was intended to reduce the amount of prisoner litigation flooding the court system. The inmates are informed of the process and should be required to complete the process before attempting to seek relief from the state courts. L'Minggio did not complete the administrative process and, as a result, should be denied relief.

¶ 49. For the foregoing reasons, I respectfully dissent.

¶ 50. I am authorized to state that Justices N. PATRICK CROOKS and DIANE S. SYKES join this opinion.

        State ex rel. L'Minggio v. Gamble, No. 01-0535, unpublished slip op. (Wis. Ct. App. Feb. 21, 2002).

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Wisconsin Admin. Code § DOC 310.09(3) provides: "An inmate shall file a complaint within 14 calendar days after the occurrence giving rise to the complaint, except that the institution examiner may accept a late complaint for good cause."

       Wisconsin Stat. § 801.50(3) provides: "All actions in which the sole defendant is the state, any state board or commission or any state officer, employee or agent in an official capacity shall be venued in Dane County unless another venue is specifically authorized by law."

       Wisconsin Stat. § 893.735(2) provides:
      An action seeking a remedy available by certiorari made on behalf of a prisoner is barred unless commenced within 45 days after the cause of action accrues. The 45-day period shall begin on the date of the decision or disposition, except that the court may extend the period by as many days as the prisoner proves have elapsed between the decision or disposition and the prisoner's actual notice of the decision or disposition. Subject to no contact requirements of a court or the department of corrections, a prisoner in administrative confinement, program segregation or adjustment segregation may communicate by 1st class mail, in accordance with department of corrections' rules or with written policies of the custodian of the prisoner, with a 3rd party outside the institution regarding the action or special proceeding.

       Wisconsin Stat. § 801.02(7)(b) provides:
      No prisoner may commence a civil action or special proceeding, including a petition for a common law writ of certiorari, with respect to the prison or jail conditions in the facility in which he or she is or has been incarcerated, imprisoned or detained until the person has exhausted all available administrative remedies that the department of corrections has promulgated by rule or, in the case of prisoners not in the custody of the department of corrections, that the sheriff, superintendent or other keeper of a jail or house of correction has reduced to writing and provided reasonable notice of to the prisoners.
      Wisconsin Admin. Code § DOC 310.04 provides:
      Before an inmate may commence a civil action or special proceedings against any officer, employe or agent of the department in the officer's, employe's or agent's official or individual capacity for acts or omissions committed while carrying out that person's duties as an officer, employe or agent or while acting within the scope of the person's office, the inmate shall file a complaint under s. DOC 310.09 or 310.10, receive a decision on the complaint under s. DOC 310.12, have an adverse decision reviewed under s. DOC 310.13, and be advised of the secretary's decision under s. DOC 310.14. With respect to procedures used by the adjustment committee or hearing officer in a prison disciplinary action under ch. DOC 303, an inmate shall appeal to the warden under s. DOC 303.76 and file an inmate complaint under s. DOC 310.08(3) in order to exhaust administrative remedies.

        See Wis. Const. Art. I, § 8, cl. 4; U.S. Const. Art. I, § 9, cl. 2; Wis. Stat. § 782.01; 28 U.S.C. § 2241.

       In bin-Rilla, we noted that there are several remedies that a prisoner may pursue other than habeas corpus to challenge conditions of confinement, such as mandamus, prohibition, certiorari, and a civil rights action under 42 U.S.C. § 1983. bin-Rilla v. Israel, 113 Wis. 2d 514, 518 n.4, 335 N.W.2d 384 (1983).

       Wisconsin Admin. Code § DOC 303.82(2) provides:
      No person who has substantial involvement in an incident, which is the subject of a hearing, may serve on the committee for that hearing. Committee members shall determine the subject matter of the hearing in advance in order to allow replacement of committee members if necessary and thereby avoid the necessity of postponing the hearing.

       Majority op., ¶ 24.

       Majority op., ¶ 29.

       Wisconsin Admin. Code § 310.04 provides, in relevant part:
      With respect to procedures used by the adjustment committee or hearing officer in a prison disciplinary action under ch. DOC 303, an inmate shall appeal to the warden under s. DOC 303.76 and file an inmate complaint under s. DOC 310.08(3) in order to exhaust administrative remedies.


author: ANN WALSH BRADLEY, J.

text:
    State of Wisconsin ex rel. Leslie J. Schatz, Petitioner-Appellant, v. Gary R. McCaughtry, Respondent-Respondent-Petitioner.
    Supreme Court

      No. 01-0793.

      Oral argument February 13, 2003.

    Decided July 2, 2003.

    2003 WI 80
    (Also reported in 664 N.W.2d 596.)

      For the respondent-respondent-petitioner the cause was argued by Thomas J. Dawson, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.
    For the petitioner-appellant there was a brief by T. Christopher Kelly and Kelly & Habermehl, S.C., Madison, and oral argument by T. Christopher Kelly.

   ANN WALSH BRADLEY, J.

¶ 1. The petitioner, State of Wisconsin, seeks review of a published court of appeals decision that reversed the circuit court's dismissal of a petition for a writ of certiorari filed by Leslie Schatz, a prisoner at the Waupun Correctional Institution. Schatz's petition sought review of three disciplinary decisions. The circuit court dismissed the petition sua sponte under Wis. Stat. § 802.05(3) (1999-2000) for failure to state a claim upon which relief may be granted.

¶ 2. The court of appeals concluded that Schatz's constitutional right to due process was violated when the circuit court dismissed the petition sua sponte without giving Schatz prior notice of its intent to do so and an additional opportunity to be heard. We agree with the State that the circuit court's dismissal of the petition did not violate Schatz's right to due process because Wis. Stat. § 802.05(3) provides constructive notice of the potential for a sua sponte dismissal for failure to state a claim and there are procedural safeguards that protect against erroneous sua sponte dismissals. We also conclude that the sua sponte dismissal did not violate Schatz's constitutional right to equal protection of the law. Accordingly, we reverse and remand to the court of appeals.

I-H

¶ 3. Schatz, an inmate at the Waupun Correctional Institution acting pro se, filed a petition for a writ of certiorari with the Dane County circuit court. The petition requested review of three prison disciplinary decisions, each of which was based on a separate conduct report.

¶ 4. As required by the initial pleading review procedure created by Wisconsin's Prisoner Litigation Reform Act (PLRA) and codified in Wis. Stat. § 802.05(3), the circuit court reviewed Schatz's petition, including copies of the conduct reports, the disciplinary committee decisions, and other supporting materials that Schatz provided with the petition. It determined that the petition failed to state a claim upon which relief may be granted. It therefore exercised its authority under Wis. Stat. § 802.05(3) to dismiss the petition sua sponte without requiring the defendant to file an answer.

¶ 5. The court issued a memorandum decision explaining its analysis. Its decision summarized each of the three conduct reports and the disciplinary proceeding that occurred as a result of each report. The court's decision recounted Schatz's assertions that the disciplinary decisions were invalid because of the untimely delivery of notice of hearings, the lack of evidence to support the charges, a retaliatory purpose for the charges, and the improper use of hearsay. The petition also claimed that there were "numerous due process violations" throughout the process.

¶ 6. The first disciplinary decision concluded that Schatz disobeyed an order. The circuit court determined that Schatz was time barred from challenging this decision because he had not filed the petition within the statutory time period. It cited Wis. Stat. § 893.735 which provides that an action seeking a remedy available by certiorari made on behalf of a prisoner is barred unless commenced within 45 days after the cause of action accrues. The court noted that Schatz's most recent administrative denial of his challenge of the first disciplinary decision was July 29, 2000. Schatz filed the petition for a writ of certiorari on November 21, 2000, 71 days past the deadline. Therefore, with respect to the first disciplinary decision, the court determined that because of the late filing, Schatz failed to state a claim upon which relief may be granted.

¶ 7. The second and third disciplinary decisions also concluded that Schatz had disobeyed an order. The circuit court observed that, although the petition alleged that the second and third conduct reports were retaliation for Schatz's partial success in the outcome of the first conduct report, the petition failed to allege any specific facts showing retaliation. It also determined that there were no procedural errors except possibly one which was harmless, there was sufficient evidence to support the disciplinary decisions, and there was no improper use of hearsay evidence.

¶ 8. Accordingly, having reviewed and analyzed the petition and the supporting materials, the court found that the petition did not state a claim upon which relief may be granted. It therefore dismissed the petition sua sponte pursuant to § 802.05(3)(b).

¶ 9. Schatz appealed the circuit court's dismissal asserting that his rights were violated because he had not received notice and an opportunity to be heard by the court before it dismissed his petition. The court of appeals construed this claim as challenging the constitutionality of the procedure that the circuit court used in dismissing Schatz's petition sua sponte pursuant to § 802.05(3). It appointed counsel to further address this issue on Schatz's behalf and asked for supplemental briefing from both parties.

¶ 10. The court of appeals reversed the circuit court's dismissal of the petition. It first noted that § 802.05(3) does not address whether a circuit court must provide a prisoner with notice and an opportunity to be heard before it dismisses a prisoner's action or special proceeding sua sponte pursuant to § 802.05(3). State ex rel. Schatz v. McCaughtry, 2002 WI App 167, ¶ 7, 256 Wis. 2d 770, 650 N.W.2d 67. The court then determined that State ex rel. Sahagian v. Young, 141

Wis. 2d 495, 415 N.W.2d 568 (Ct. App. 1987), was controlling and that the lack of prior notice and an opportunity to be heard violated Schatz's right to due process. Schatz, 256 Wis. 2d 770, ¶ 14. Having reversed the dismissal on due process grounds, the court of appeals did not address the issue of whether the dismissal violated Schatz's right to equal protection of the law. Id., ¶ 4 n.4.

II

¶ 11. This case presents us with an opportunity to examine a circuit court's use of the PLRA's pleading review procedure to dismiss sua sponte a prisoner's petition for a writ of certiorari. The initial issue presented is whether Schatz's constitutional right to due process required that the circuit court give him notice and an additional opportunity to be heard before sua sponte dismissing his petition for failure to state a claim. Additionally, we address the issue of whether the sua sponte dismissal violated Schatz's constitutional right to equal protection of the law. Each of these issues presents a question of law subject to independent appellate review. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 629, 579 N.W.2d 698 (1998).

¶ 12. We first describe the initial pleading review procedure created by the PLRA and next examine precedent that is relevant to our due process analysis. Then, we analyze Schatz's due process and equal protection arguments and conclude that the dismissal of Schatz's petition violated neither his right to due process nor his right to equal protection of the law.

HH 1 — i

¶ 13. The circuit court dismissed Schatz's petition pursuant to the PLRA's initial pleading review procedure which is applicable to actions or special proceedings commenced by a prisoner. The PLRA defines "prisoner" as any person who is incarcerated, imprisoned, arrested, or otherwise detained in a correctional institution or by a law enforcement officer, subject to certain specified exceptions none of which are applicable to this case. See Wis. Stat. § 801.02(7)(a)2.

¶ 14. Under the review procedure, when a prisoner commences an action or a special proceeding, the circuit court reviews the prisoner's initial pleading to consider whether there are grounds to dismiss the action or special proceeding without requiring the defendant to answer the pleading. The procedure is codified in Wis. Stat. § 802.05(3)(a) and (b) which provide:

(a) A court shall review the initial pleading as soon as practicable after the action or special proceeding is filed with the court if the action or special proceeding is commenced by a prisoner, as defined in s. 801.02(7)(a)2.
(b) The court may dismiss the action or special proceeding under par. (a) without requiring the defendant to answer the pleading if the court determines that the action or special proceeding meets any of the following conditions:
1. Is frivolous, as determined under s. 814.025(3).
2. Is used for any improper purpose, such as to harass, to cause unnecessary delay or to needlessly increase the cost of litigation.
3. Seeks monetary damages from a defendant who is immune from such relief.
4. Fails to state a claim upon which relief may be granted.

¶ 15. The PLRA was designed to address the costly problems caused by excessive or otherwise inappropriate prisoner-initiated litigation. The objectives of the PLRA include enhancing judicial economy, protecting defendants from needlessly expending resources to defend this type of litigation, and reducing the taxpayer expense associated with such litigation. See State ex rel. Cramer v. Court of Appeals, 2000 WI 86, ¶¶ 38-40, 236 Wis. 2d 473, 613 N.W.2d 591.

¶ 16. The initial pleading review procedure advances these objectives by permitting circuit courts to dispose of a prisoner lawsuit at the initial pleading stage of the suit if the circuit court determines that the lawsuit is frivolous, is being used for an improper purpose, seeks monetary damages from a defendant who is immune from such relief, or fails to state a claim upon which relief may be granted.

¶ 17. The language of § 802.05(3) does not require a circuit court to give a prisoner notice of an intent to dismiss and an additional opportunity to be heard prior to exercising its authority under § 802.05(3) to dismiss the initial pleading for failure to state a claim. However, this does not end the analysis because Schatz is protected by the Fourteenth Amendment of the United States Constitution and Article 1, Section 1 of the Wisconsin Constitution from being deprived of life, liberty, or property without due process of law. See Martin v. Richards, 192 Wis. 2d 156, 198 n. 6, 531 N.W.2d 70 (1995).

¶ 18. Due process requires that there be an opportunity to be heard upon such notice and proceedings as are adequate to safeguard the right for which the constitutional protection is invoked. Link v. Wabash R.R. Co., 370 U.S. 626 (1962). Schatz argues that he has a constitutionally protected right to file a petition for a writ of certiorari and that the circuit court's sua sponte dismissal deprived him of this right without adequate notice and opportunity to be heard.

IV

¶ 19. To provide context for our review of the due process issue, we describe relevant cases that address the right of due process as it applies to sua sponte dismissals. No Wisconsin cases directly address the due process concerns raised by a circuit court's sua sponte dismissal pursuant to the PLRA for failure to state a claim. However, Wisconsin case law that examines sua sponte dismissals outside of the PLRA recognizes that, in certain circumstances, the constitutional right to due process is not offended when a circuit court dismisses a complaint sua sponte without giving the plaintiff notice of the court's intent to order such a dismissal and an additional opportunity to be heard.

¶ 20. In Neylan v. Vorwald, 124 Wis. 2d 85, 368 N.W.2d 648 (1985), this court examined whether a plaintiffs right to due process was violated by a circuit court's sua sponte dismissal based on the plaintiffs failure to prosecute. The case involved two separate actions that were not being actively prosecuted, as reflected in the record. The circuit court sua sponte dismissed both actions for failure to prosecute. The plaintiff argued that there was no failure to prosecute as evidenced by letters and telephone calls between the attorneys, most of which did not involve the court. Id. at 88-89.

¶ 21. In analyzing the sua sponte dismissal, this court noted the following language in Wis. Stat. § 805.03 on which the dismissal was based: "For failure of any claimant to prosecute,. . . the court in which the action is pending may make such orders in regard to the failure as are just. ..." Id. at 90-91 n.5. It then cited the United States Supreme Court decision of Link v. Wabash Railroad Company, 370 U.S. 626 (1962), for the proposition that, in certain circumstances, constructive notice of the potential for a sua sponte dismissal, as opposed to actual notice, may be sufficient to satisfy due process. Accordingly, the court stated that the case turned on whether § 805.03 provided such constructive notice:

In this regard, the Court in Link stated it may not be necessary to provide actual notice and a hearing where the party has constructive notice through other means, orders or rules of the court as to what the specific consequences of his conduct may be. In this case, because sec. 805.03, Stats., by its language does not provide the constructive notice required under Link, actual notice to the parties of the court's dismissal for failure to prosecute is required.

Neylan, 124 Wis. 2d at 90.

¶ 22. The Neylan court determined that there were no clear standards, such as a specific time period, articulated in Wis. Stat. § 805.03 that would have placed a party on constructive notice as to when the party risks dismissal for failure to prosecute. Id. at 90-91. Accordingly, it concluded that the dismissal was improper because the statute did not give adequate notice to a plaintiff as to what would constitute failure to prosecute. Id.

¶ 23. The case of Sahagian v. Young followed on the heels of Neylan. The court of appeals relied on that case as the basis for its conclusion that the circuit court's sua sponte dismissal violated Schatz's right to due process. Sahagian was a pre-PLRA case in which a prisoner filed a petition for a writ of certiorari seeking review of a prison disciplinary decision. The circuit court affirmed the prison's disciplinary decision on the merits in a memorandum decision and order.

¶ 24. The court of appeals concluded that Sahagian's right to due procesé was violated because he was not given an opportunity to make an argument to the court prior to the entry of the order, other than the argument contained in his petition. Sahagian, 141 Wis. 2d at 501. The court noted that a petition for a writ of certiorari is generally not intended to fully set forth a petitioner's arguments of the merits, and thus Sahagian was not given an opportunity to be heard at a meaningful time in a meaningful manner. Id.

¶ 25. Of more recent vintage are two federal cases that inform our discussion of procedural safeguards to protect against erroneous sua sponte dismissals and which satisfy due process requirements. The court in Curley v. Perry, 246 F.3d 1278 (10th Cir. 2001) dealt specifically with the due process issue as it relates to the sua sponte dismissal of a prisoner's complaint under the federal Prisoner Litigation Reform Act of 1995. That act created a screening process similar to the initial pleading review procedure set forth in § 802.05(3). In Curley, a state prisoner in New Mexico filed a complaint in federal district court. The district court construed the lawsuit as asserting an Eighth Amendment violation in which prison officials created unconstitutional conditions of confinement by failing to prevent or monitor inmate-to-inmate correspondence. Such correspondence was alleged to be a mechanism that inmates used to plan violence against other inmates.

¶ 26. The district court dismissed the complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) which provides that a federal district court shall dismiss an in forma paup-eris case at any time the court determines that the action fails to state a claim upon which relief may be granted. The Tenth Circuit Court of Appeals addressed whether the district court violated Curley's due process rights by dismissing his complaint without providing prior notice or an opportunity to amend it. It concluded that the sua sponte dismissal of the complaint was not a violation of due process. Id. at 1284. The court noted that Curley was not prevented from bringing a meritorious claim. Id.

¶ 27. According to the Tenth Circuit, the federal rules of civil procedure provided adequate procedural safeguards to protect against erroneous dismissals. Under the federal rules, a litigant whose complaint has been dismissed with prejudice can file a motion to alter or amend the judgment or a motion for relief from judgment. Id. The litigant can also bring an appeal, in which the Court of Appeals conducts plenary review of the sufficiency of the complaint. Id.

¶ 28. Another federal case, Blaney v. West, 209 F.3d 1027 (7th Cir. 2000), is helpful in analyzing the role of post-judgment relief in satisfying due process requirements. Blaney brought an age discrimination claim against the Department of the Army. His attorney did not properly serve the government. The district court dismissed the case sua sponte for failure to serve the defendant. Blaney appealed the dismissal.

¶ 29. In analyzing whether the dismissal was a violation of due process, the Seventh Circuit Court of Appeals observed that, after the dismissal, Blaney's counsel could have filed a Rule 59(e) motion to alter or amend the judgment or a Rule 60(b) motion to relieve him from a final judgment. Id. at 1032. Blaney's attorney did in fact file a motion for relief from judgment, but after consideration the district court ultimately denied the motion. Id. The Seventh Circuit concluded that the original sua sponte dismissal was not a violation of due process:

The lack of notice before the entry of judgment certainly did not rise to the level of a violation of due process in this case because Blaney received notice from the judgment itself and had ample opportunity after entry of the judgment to make his case to the district court.

Id.

V

¶ 30. In light of the language of § 802.05(3) and the case law regarding due process, we now analyze whether Schatz's right to due process was violated in this case. With respect to notice, it is apparent from Neylan and Link that, in certain circumstances, constructive notice can be sufficient to satisfy due process. Neylan, 124 Wis. 2d at 90; Link, 370 U.S. at 632. Schatz does not dispute this. Rather, Schatz argues that constructive notice did not exist in this case. He asserts that, according to Link, the existence of constructive notice turns "to a considerable extent, on the knowledge which the circumstances show such party may be taken to have of the consequences of his own conduct." Link, 370 U.S. at 632. Schatz contends that § 802.05(3) does not provide such constructive notice. We disagree.

¶ 31. The language of § 802.05(3) states that, with respect to an action commenced by a prisoner, the court "shall review the initial pleading as soon as practicable'1 and "may dismiss the action or special proceeding. . . without requiring the defendant to answer the pleading if the court determines that the action or special proceeding. . . [flails to state a claim upon which relief may be granted." This expressly puts prisoners on notice that a circuit court will examine the initial pleading and may, without further briefing or hearing on the matter, dismiss the complaint if the court determines that the initial pleading fails to state a claim. Accordingly, Schatz had constructive notice that his petition could be dismissed if it did not state a claim.

¶ 32. Schatz and the court of appeals rely heavily on Sahagian to support the position that due process requires that, despite the notice created by § 802.05(3), the court give additional notice of its intent to dismiss and an additional opportunity to be heard. This reliance is misplaced. A key distinction between the circuit court's ruling in Sahagian and the dismissal that occurred in this case is that the circuit court in Sahagian dismissed the petition before the enactment of the PLRA. Unlike here, there was no statute to be applied by the Sahagian court that specifically authorized the sua sponte dismissal ordered by the court. As a result, Sahagian had no constructive notice of the potential that the court would dismiss his petition. Thus, the court of appeals erred in concluding that Sahagian controlled the outcome of this case and required a finding that Schatz's due process rights were violated.

¶ 33. In addition to the constructive notice created by § 802.05(3), Schatz's right to due process is further protected by the existence of procedural safeguards against erroneous sua sponte dismissals. An initial safeguard is the standard that a court is required to apply when considering whether to dismiss for failure to state a claim. The standard for deciding whether a certiorari petition is sufficient to order a return is the same standard used to decide whether a complaint states a claim. State ex rel. Luedtke v. Bertrand, 220 Wis. 2d 574, 580, 583 N.W.2d 858 (Ct. App. 1998). It requires that the circuit court construe the petition liberally and consider dismissal only if it is quite clear that no relief can be had under any legal theory. Id. at 581-82; Evans v. Cameron, 121 Wis. 2d 421, 426, 360 N.W.2d 25 (1985); Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis. 2d 723, 731, 275 N.W.2d 660 (1979).

¶ 34. In dismissing a prisoner's complaint for failure to state a claim, the circuit court may consider whether the petition can be salvaged by amendment. In Wiegal v. Sentry Indemnity Company, 94 Wis. 2d 172, 184-85, 287 N.W.2d 796 (1980) (citation omitted), this court stated that refusal to allow an amendment would be an erroneous exercise of discretion: (1) when justice requires an amendment of the pleadings, or (2) when it appears that an omission is material and that such omission or failure is through mistake, inadvertence, surprise, or excusable neglect.

¶ 35. Further, procedural safeguards exist in that the dismissal order provides notice to the prisoner of the reason for the dismissal and the prisoner can request that the circuit court reexamine its decision to dismiss the petition. This can be done through a request for reconsideration or a motion for relief from the order under Wis. Stat. § 806.07. As recognized in Curley and Blaney, these post-judgment opportunities to present arguments before the trial court are a source of ensuring that an individual's right to due process is protected. Curley, 246 F.3d at 1284; Blaney, 209 F.3d at 1032.

¶ 36. In addition, in cases where the dismissal is without prejudice and the time limitation for filing the petition has not expired, a prisoner could re-file the petition. In the case at bar, the circuit court did not state whether the petition was being dismissed with or without prejudice. At oral argument, the State acknowledged that the complaint in this case was dismissed without prejudice. We conclude that, in the circumstances of this case, the dismissal of the petition with respect to the second and third disciplinary decisions was without prejudice. Generally, when a dismissal for failure to state a claim does not specify whether it is with or without prejudice and the defects in the dismissed complaint can be cured by a subsequent complaint, the dismissal should not be treated as a bar to the filing of the subsequent complaint. Taylor v. Matteson, 86 Wis. 113, 56 N.W. 829 (1893).

¶ 37. In many circumstances in which the petitioner timely filed the original petition, the petitioner will not be foreclosed by the 45-day statute of limitations from having an opportunity to re-file after a dismissal without prejudice. Under Wis. Stat. § 893.13(2), the statute of limitations will be tolled from the date the petitioner filed the original petition until the "final disposition" of the petition as defined in Wis. Stat. § 893.13(1).

¶ 38. Finally, the prisoner has the right to appeal the dismissal order. Wis. Stat. § 808.03 provides that "... a final order of a circuit court may be appealed as a matter of right to the court of appeals unless otherwise expressly provided by law."

¶ 39. In examining the procedural avenues, we note that a dismissal for failure to state a claim is a dismissal that is counted toward the three strikes provision in § 801.04(7)(a), which creates additional restrictions on the ability of prisoners to file future lawsuits. Obviously, a request for reconsideration or a motion for relief from judgment will not result in an additional strike. Further, to the extent a prisoner may re-file a petition that has been dismissed without prejudice for failure to state a claim, any subsequent dismissal of the re-filed petition will not result in an additional strike, provided that all of the claims set forth in the re-filed petition arose out of the transaction, occurrence, or event set forth in the original petition.

¶ 40. To notify prisoners of the procedural safeguards that exist to protect against erroneous sua sponte dismissals, we recommend that a citation to this decision be added to the form dismissal order used by Wisconsin circuit courts in prisoner litigation cases.

VI

¶ 41. Finally, Schatz argues that the sua sponte dismissal of his petition violated his constitutional right to equal protection of the law under the Fourteenth Amendment of the United States Constitution and Article 1, Section 1 of the Wisconsin Constitution. Generally, unless a legislative classification affects a fundamental right or is based on a suspect criterion, the standard used in reviewing the constitutionality of the legislative classification is the rational basis test, that is, whether the classification bears a rational relation to some legitimate end. State ex rel. Kahn v. Sullivan, 2000 WI App 109, ¶ 9, 235 Wis. 2d 260, 613 N.W.2d 203; Group Health Coop, of Eau Claire v. Wisconsin Dep't of Revenue, 229 Wis. 2d 846, 856, 601 N.W.2d 1 (Ct. App. 1999).

¶ 42. Schatz concedes that the rational basis test is the appropriate test to analyze his equal protection claim. He argues that this test is not satisfied because no legitimate end is advanced by denying prisoners the procedural protections that are Available to non-prisoner litigants. We disagree.

¶ 43. The State has a legitimate interest in deterring non-meritorious lawsuits and preserving judicial resources. Kahn, 235 Wis. 2d 260, ¶ 10. As noted above, the objectives of the PLRA. include enhancing judicial economy, protecting defendants from needlessly expending resources to defend inappropriate prisoner-initiated litigation and reducing the taxpayer expense associated with such litigation. See Cramer, 236 Wis. 2d 473, ¶¶ 38-40. The initial pleading review procedure advances these objectives by permitting circuit courts to dispose of a prisoner lawsuit at the initial pleading stage of the suit if the circuit court determines that the lawsuit is frivolous, is being used for an improper purpose, seeks monetary damages from a defendant who is immune from such relief, or fails to state a claim upon which relief may be granted.

¶ 44. Distinguishing between prisoners and non-prisoners is' a rational means of limiting meritless litigation because "it has been recognized that prisoners . .. account for a disproportionate amount of mer-itless litigation." (citations omitted) Kahn, 235 Wis. 2d 260, ¶ 10. In concluding that the federal PLRA was rationally related to the legitimate state interest of curbing abuse of the federal judicial system, the Fourth Circuit Court of Appeals noted the differences between prisoners and non-prisoners that create a far greater opportunity for abuse of the judicial system:

Prisoners are not similarly situated to non-prisoners. .. . They often have free time on their hands that other litigants do not possess.... [TJhere has been a far greater opportunity for abuse of the federal judicial system in the prison setting.

Roller v. Gunn, 107 F.3d 227, 234 (4th Cir. 1997).

¶ 45. We therefore determine that the classification created by the PLRA, as applied in this case, bears a rational relation to a legitimate end. Accordingly, we conclude that the dismissal of Schatz's petition did not violate his right to equal protection of the law.

¶ 46. Finally, Schatz asserts that, if we do not affirm the court of appeals decision, we should remand this case to the court of appeals to address the issue of whether the circuit court erred in denying his request for substitution of judge. Although not argued or briefed in this court, Schatz maintains the issue is preserved because he raised it in his initial briefs at the court of appeals. The State counters that this issue has been waived. Because the court of appeals decided the case on other grounds, it did not discuss whether the denial was error or whether Schatz waived his right to appeal this issue. We therefore remand to the court of appeals for such determinations.

¶ 47. In sum, we conclude that the circuit court's sua sponte dismissal of Schatz's petition for a writ of certiorari did not violate his right to due process or his right to equal protection of the law. Here, due process is satisfied because of the constructive notice created by Wis. Stat. § 802.05(3)(b), -together with the post-dismissal procedures available to the prisoner. Equal protection is satisfied because the application of the PLRA's initial pleading review procedure in this case satisfies the rational basis test. Accordingly, we reverse the court of appeals decision and remand to the court of appeals.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded to the court of appeals.

        State ex rel. Schatz v. McCaughtry, 2002 WI App 167, 256 Wis. 2d 770, 650 N.W.2d 67 (reversing an order of the circuit court for Dane County, Richard J. Callaway, Judge).

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.

       1997 Wis. Act 133.

       At oral argument, the following discussion occurred:
      Chief Justice Abrahamson: The decision that Judge Callaway gave here, isn't it on the merits?
      Assistant Attorney General: No, it appears because of the record and because of the extensiveness of the decision, one might think at first blush it was. But it was a motion to dismiss for failure to state a claim.
      Chief Justice Abrahamson: OK, so it's without prejudice is what you're saying. Without prejudice because it's a motion to dismiss, doesn't mean you can't file a new complaint. Is that right?
      Assistant Attorney General: Exactly. Mr. Schatz in this case could have done a number of things. He could have sought to amend his petition. He could have sought a reconsideration of the decision by Judge Callaway. He could have sought relief from judgment.

       With regard to the first disciplinary decision, the circuit court concluded that Schatz failed to state a claim because he had not filed the petition within the statutory time period. It is unclear from the record whether Schatz would be able to advance any argument that could cure this defect.

       Wisconsin Stat. § 893.13 provides:
      893.13 Tolling of statutes of limitation.
      (1) In this section and ss. 893.14 and 893.15 "final disposition" means the end of the period in which an appeal may be taken from a final order or judgment of the trial court, the end of the period within which an order for rehearing can be made in the highest appellate court to which an appeal is taken, or the final order or judgment of the court to which remand from an appellate court is made, whichever is latest.
      (2) A law limiting the time for commencement of an action is tolled by the commencement of the action to enforce the cause of action to which the period of limitation applies. The law limiting the time for commencement of the action is tolled for the period from the commencement of the action until the final disposition of the action.
      (3) If a period of limitation is tolled under sub. (2) by the commencement of an action and the time remaining after final disposition in which an action may be commenced is less than 30 days, the period within which the action may be commenced is extended to 30 days from the date of final disposition.


author: Bradley, J.,

text:
    In the Matter of Disciplinary Proceedings Against Anne B. Shindell, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Anne B. Shindell, Respondent.
    Supreme Court

      No. 02-1997-D.

      Decided July 2, 2003.

    2003 WI 93
    (Also reported in 665 N.W.2d 170.)
   IT IS ORDERED that the petition for consensual license revocation is granted.

IT IS FURTHER ORDERED that the license of Anne B. Shindell to practice law in Wisconsin is revoked effective the date of this order.

IT IS FURTHER ORDERED that Anne B. Shindell shall comply with the requirements of SCR 22.26 relating to activities following revocation.

IT IS FURTHER ORDERED that Anne B. Shindell shall pay the costs of this proceeding.

Bradley, J.,

dissents. See Disciplinary Proceedings Against Wortley, 126 Wis. 2d 58, 62, 374 N.W.2d 898 (1985) (revocation by consent can occur "provided the attorney is willing to admit to having engaged in professional misconduct").


text:
    In the Matter of Disciplinary Proceedings Against Francia M. Evers, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Francia M. Evers, Respondent.
    Supreme Court

      No. 02-2147-D.

      Opinion Decided July 2, 2003.

    2003 WI 92
    (Also reported in 665 N.W.2d 168.)
   IT IS ORDERED that the petition for consensual license revocation is granted.

IT IS FURTHER ORDERED that the license of Francia M. Evers to practice law in Wisconsin is revoked effective the date of this order.

IT IS FURTHER ORDERED that Evers shah comply with the requirements of SCR 22.26 relating to activities following revocation.

IT IS FURTHER ORDERED that the pending OLR motion under SCR 22.21(1) seeking temporary suspension of Evers' license is dismissed as moot.

Bradley, J.,

dissents. See Disciplinary Proceedings Against Wortley, 126 Wis. 2d 58, 62, 374 N.W.2d 898 (1985) (revocation by consent can occur "provided the attorney is willing to admit to having engaged in professional misconduct").