Artillis Mitchell v. Chris S. Buesgen

2024 WI App 14
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2022AP1076

† Petition for Review filed

Complete Title of Case:

ARTILLIS MITCHELL,

PETITIONER-APPELLANT,†

V.

CHRIS S. BUESGEN AND KEVIN A. CARR,

RESPONDENTS-RESPONDENTS.

Opinion Filed: February 22, 2024
Submitted on Briefs: May 11, 2023
Oral Argument:

JUDGES: Kloppenburg, P.J., Blanchard, and Graham, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the petitioner-appellant, the cause was submitted on the
briefs of Douglas M. Raines and Emily Logan Stedman of Husch
Blackwell LLP, Milwaukee.

Respondent
ATTORNEYS: On behalf of the respondents-respondents, the cause was submitted on
the brief of Karla Z. Keckhaver, assistant attorney general, and Joshua L.
Kaul, attorney general.
2024 WI App 14

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 22, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP1076 Cir. Ct. No. 2022CV1204

STATE OF WISCONSIN IN COURT OF APPEALS

ARTILLIS MITCHELL,

PETITIONER-APPELLANT,

V.

CHRIS S. BUESGEN AND KEVIN A. CARR,

RESPONDENTS-RESPONDENTS.

APPEAL from an order of the circuit court for Dane County:
SUSAN M. CRAWFORD, Judge. Affirmed.

Before Kloppenburg, P.J., Blanchard, and Graham, JJ.

¶1 BLANCHARD, J. Artillis Mitchell, an inmate at Stanley
Correctional Institution, appeals a circuit court order dismissing his petition for a
writ of certiorari. Mitchell seeks to challenge a disciplinary determination and
sanction against him issued by a prison disciplinary committee. The court
No. 2022AP1076

dismissed Mitchell’s writ petition on the ground that he failed to properly
commence the action within 45 days of an adverse decision by the secretary of the
state Department of Corrections (“the department”) on his related inmate
complaint. See WIS. STAT. § 893.735(2) (2021-22) (setting a 45-day limitation
period to commence action, which is triggered by accrual of an action). 1 More
specifically, the court dismissed the action because Mitchell failed to submit to the
court, within the 45-day limitation period, copies of all of the written materials
that had been generated by Mitchell’s exhaustion of potential administrative
remedies, as required by WIS. STAT. § 801.02(7)(c).2

¶2 Mitchell argues that the 45-day limitation period was tolled because
he encountered delays in obtaining a document that he timely requested from
prison staff and that was related to his request for a waiver of prepayment of the
costs and fees required to permit filing of the writ petition. But Mitchell does not
dispute that he had control over all of the administrative-process documents that
he was required to submit to the court under WIS. STAT. § 801.02(7)(c), and that
he failed to submit all of the administrative-process documents within the
limitation period. Therefore, it is irrelevant if, at pertinent times, he separately did

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
As discussed more fully below, WIS. STAT. § 801.02(7)(c) requires a prisoner to submit
“[a]t the time of filing the initial pleading to commence” such an action “documentation
showing” that the prisoner “has exhausted all available administrative remedies.” When
considered as a whole, however, § 801.02(7)(c) unambiguously requires prisoners to initially
submit more documents than those strictly necessary to prove exhaustion. For this reason, we
refer to the submissions that are required by § 801.02(7)(c) as the “administrative-process
documents,” rather than using a reference such as the proof-of-exhaustion documents.

2
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not have control over a document related to his request for a waiver of prepayment
of costs and fees.

¶3 Mitchell also contends that the clerk of circuit court “usurped” the
authority of the circuit court by declining, for a period of time, to “file” his writ
petition. We reject this argument on the grounds that, for purposes of this appeal,
it does not matter what the clerk did or did not do in terms of “filing” the writ
petition, given that Mitchell fails to show that he was misled or hindered by any
act or omission of the clerk and that the court properly dismissed the petition
based on Mitchell’s failure to timely submit all of the administrative-process
documents that were within his control.

¶4 In the alternative, Mitchell argues that, even if he did not timely
submit to the circuit court all of the administrative-process documents, the
appropriate adverse consequence under WIS. STAT. § 801.02(7)(c) is denial of his
request for a waiver of prepayment of the costs and fees for the filing of the writ
petition, not dismissal of the writ petition. We disagree. Based on controlling
precedent, and on our interpretation of § 801.02(7)(c) and closely related statutes,
we conclude that the circuit court properly dismissed the writ petition because of
Mitchell’s failure to timely submit all administrative-process documents.

¶5 Accordingly, we affirm.

BACKGROUND

¶6 In September 2021, institutional staff at Stanley delivered to
Mitchell a report alleging that he had recently engaged in misconduct. Details
regarding the alleged misconduct do not matter to this appeal. But, stated briefly,
it included his alleged possession of “intoxicant paraphernalia” and use of

3
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“intoxicants,” in violation of WIS. ADMIN. CODE §§ DOC 303.44 and 303.60
(March 2018), respectively. The report also alleged that Mitchell’s use of
“intoxicants” resulted in the need to transport him by ambulance to a hospital. A
prison disciplinary committee rejected Mitchell’s denials of the factual allegations
and found him guilty of these two code violations. The committee imposed
sanctions of disciplinary separation and restitution for repayment of costs arising
from the medical response to the incident. Stanley’s warden denied Mitchell’s
appeal from the disciplinary committee’s decision.

¶7 Mitchell initiated an administrative complaint through the inmate
complaint review system.3 He asserted that the restitution order violated his due
process rights and constituted “a procedural error.” Mitchell took his complaint
through each step of the department’s administrative review process for inmate
complaints. He lost at each step. The last step ended with the decision of the
department secretary, on March 16, 2022, to accept the recommendation of a
corrections complaint examiner to dismiss his appeal of the denial of his inmate
complaint.

¶8 The parties agree that the civil cause of action that Mitchell
attempted to commence here accrued on the day of the secretary’s decision. The
parties further agree that this means that the 45-day limitation period within which
Mitchell had to commence the action under WIS. STAT. § 893.735(2) would elapse
on May 2, 2022, assuming no equitable tolling.

3
A prisoner cannot obtain certiorari review of a prison disciplinary action until the
prisoner has pursued all potential claims of procedural error through the institution’s inmate
complaint review system. State ex rel. Tyler v. Bett, 2002 WI App 234, ¶3, 257 Wis. 2d 606, 652
N.W.2d 800.

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¶9 Seeking certiorari review, on April 26, 2022, Mitchell placed a
number of documents, along with his affidavit listing the documents, in a prison
mailbox for submission to the circuit court. We now describe those documents.

¶10 One set of documents was directly related to the writ petition: A
petition for writ of certiorari and a proposed writ.

¶11 Another set of documents was related to a potential waiver of
prepayment of costs and fees: (1) A petition for an order waiving costs and fees
prepayment; (2) an affidavit of indigency; and (3) Mitchell’s authorization that the
department could take from his prison trust account appropriate payments toward
the filing costs and fees.4 Further supporting the request for a waiver of
prepayment was a “three strikes” certification by the Wisconsin Department of
Justice establishing that Mitchell had not pursued three dismissed prior civil cases
of the types addressed in WIS. STAT. §§ 801.02(7)(d) and 802.05(4)(b)1.-4.
Mitchell submitted the “three strikes” certification because he sought waiver of
prepayment of costs and fees—a prisoner who has a “three strikes” status cannot
obtain a waiver. See § 801.02(7)(d); WIS. STAT. § 814.29(1m)(c).

4
Explaining further this category of documents, Mitchell did not submit prepayment of
the costs and fees, or security for the costs, which would ordinarily be required to file a writ
petition. Instead, he sought a waiver of prepayment on the grounds of indigency, pursuant to
WIS. STAT. § 814.29(1m). See § 814.29(1m)(b)1. and 2. (prisoner seeking to commence
certiorari action without full prepayment of fee must request leave and submit affidavit of
indigency along with a certified copy of trust fund account statement for the preceding six
months). If granted by the circuit court, this waiver relieves a prisoner of the duty to prepay the
fee, but the prisoner must still make incremental payments until the fee is paid in full. See
§ 814.29(1m)(d)-(e). Depending on the outcome of the action, the prisoner still may be
responsible for paying the balance of the filing fee. See § 814.29(1m)(e), (3)(a) and (b).

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¶12 The parties in this appeal dispute the significance of two other
documents that Mitchell submitted on April 26, both of which relate to
administrative processes within Stanley and the department: the warden’s
October 5, 2021 decision affirming the disciplinary committee decision and the
secretary’s March 16, 2022 decision rejecting Mitchell’s inmate complaint.

¶13 In connection with his prepayment waiver request, Mitchell averred
the following in his April 26 affidavit. The day before, on April 25, Mitchell had
requested from the Stanley business office a certified copy of his current prison
trust fund account statement, but at the time of his April 26 submissions to the
court he had not yet received that statement. The record reflects that Stanley
processed this request on April 28 and forwarded a certified statement to the court
at some point.5

5
The parties agree that the record does not reflect the date on which the circuit court
received the certified account statement, only that it reflects possession by the court no later than
May 17, 2022. For reasons discussed below, it does not matter for purposes of resolving this
appeal when the statement was forwarded to the court.

We now make a related observation. The record in this appeal is less clear than it would
be if the clerk of circuit court had used some method to memorialize when particular documents
submitted to that office were received by that office, regardless of when the documents might be
deemed “filed.” For comparison, in at least some other appeals, this court (and anyone else
looking at the record) has had the benefit of being able to determine from the record when
documents were received by clerks. See Tyler, 257 Wis. 2d 606, ¶6 (noting that the record
contained “a delivery receipt” showing when the clerk “received” a resubmitted petition); State
ex rel. Steldt v. McCaughtry, 2000 WI App 176, ¶7, 238 Wis. 2d 393, 617 N.W.2d 201 (noting
that clerk used “a date stamp stating ‘Received’” with an accompanying date, to indicate when a
petition was received in that office); see also State ex rel. Locklear v. Schwarz, 2001 WI App 74,
¶40, 242 Wis. 2d 327, 629 N.W.2d 30 (“Because of the shortened deadline for prisoners filing
certiorari actions, it is extremely important that both clerk of courts and judicial offices keep
thorough and meticulous records when dealing with pro se prisoner submissions.”).

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No. 2022AP1076

¶14 Mitchell asserts, and the State does not dispute, that the following
events occurred following his April 26 submissions to the circuit court. On
April 29, 2022, a staff attorney purporting to represent the Dane County Clerk of
Circuit Court sent Mitchell a letter notifying him that the clerk’s office had
received his submissions but that “they have not been filed because you have
failed to provide all documents required by Wisconsin law.” On May 5 and also
on May 10, Mitchell submitted additional administrative-process documents.

¶15 On May 17, 2022, the circuit court granted Mitchell’s request for
waiver of prepayment of costs and fees and the writ petition was deemed “filed.”
On May 20, the circuit court issued an order dismissing the writ action. The court
determined that Mitchell failed to state a claim based on the fact that he had not
submitted all required documents within the 45-day limitation period. The court
indicated that the respondent would not be required to provide an answer or
responsive pleading. Mitchell appeals the dismissal order.6

DISCUSSION

¶16 Mitchell makes two primary arguments: (1) the circuit court was
obligated to treat as timely the submissions that Mitchell was required to make in
connection with his writ petition; and (2) even if his submissions were not timely,

6
Mitchell filed a motion for reconsideration of the circuit court order dismissing his writ
petition, but the court did not address this motion, and neither side now makes an argument
related to it.

Separately, through the State Bar of Wisconsin’s Appellate Practice Section pro bono
program, this court appointed Attorneys Douglas M. Raines and Emily Logan Stedman of the
firm Husch Blackwell LLP to represent Mitchell in this court. We appreciate and commend the
vigorous advocacy of these attorneys on Mitchell’s behalf. We also thank the Section for
continuing to sponsor this valuable program.

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No. 2022AP1076

the appropriate adverse consequence is denial of the request for waiver of
prepayment of the filing fee, not dismissal of the writ petition.

¶17 No relevant facts are disputed in this challenge to a circuit court
order dismissing an attempt to commence an action for a writ petition based on the
prisoner’s failure to comply with a statutory limitation period. For these reasons,
as the parties correctly recognize, our review of issues involving the interpretation
and application of statutes and prior appellate opinions is de novo. See State ex
rel. Johnson v. Litscher, 2001 WI App 47, ¶4, 241 Wis. 2d 407, 625 N.W.2d 887;
Meyers v. Bayer AG, 2007 WI 99, ¶22, 303 Wis. 2d 295, 735 N.W.2d 448.

¶18 Courts begin statutory interpretation by examining the language of
the statute. State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45,
271 Wis. 2d 633, 681 N.W.2d 110. If the court discerns a plain meaning in the
language, that ordinarily ends the inquiry. Id. “Statutory language is given its
common, ordinary, and accepted meaning, except that technical or specially-
defined words or phrases are given their technical or special definitional
meaning.” Id. “[S]tatutory language is interpreted in the context in which it is
used; not in isolation but as part of a whole; in relation to the language of
surrounding or closely-related statutes; and reasonably, to avoid absurd or
unreasonable results.” Id., ¶46. If this inquiry “yields a plain, clear statutory
meaning, then there is no ambiguity, and the statute is applied according to this
ascertainment of its meaning.” Id. (quoted source omitted).

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No. 2022AP1076

I. MITCHELL FAILED TO TIMELY SUBMIT ALL
ADMINISTRATIVE-PROCESS DOCUMENTS, ALL OF WHICH
WERE IN HIS CONTROL, AND THIS REQUIRES DISMISSAL
OF THIS WRIT ACTION

¶19 Mitchell’s timeliness argument comes in two parts. He contends that
the 45-day limitation was equitably tolled by his initial submissions to the circuit
court before May 2, 2022. He also contends that the clerk of circuit court
“usurped” the authority of the circuit court when the clerk did not immediately,
upon receipt of the writ petition, treat it as “filed.” We address the two parts of the
timeliness argument in turn.

A. WISCONSIN STAT. § 893.735(2) was not equitably tolled

¶20 Mitchell argues that, given the submissions that he made to the
circuit court before May 2, 2022, the 45-day limitation period within which he had
to properly commence this action was equitably tolled right up to the time when
his writ petition was deemed “filed” on May 17, 2022—by which time all required
documents had been submitted—and therefore his writ petition was timely
submitted under WIS. STAT. § 893.735(2). This is so, Mitchell contends, because:
he timely submitted all of the documents that he needed to submit regarding the
waiver-of-prepayment request, except for his trust account statement; he had
requested the missing trust account statement, which was not in his control; and
the administrative-process documents required by WIS. STAT. § 801.02(7)(c),
which he did not submit before May 2, were “inconsequential.” We now briefly
summarize the applicable statutes. We then explain why we conclude that: the
limitation period was not tolled for purposes of the required timely submission of
all administrative-process documents; Mitchell’s point about tolling regarding the
waiver-of-prepayment documents is not material to the dispositive issue involving
failure to timely submit all administrative-process documents; and controlling case

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No. 2022AP1076

law and unambiguous statutory language defeat his argument that omission of
required administrative-process documents was “inconsequential.”

¶21 WISCONSIN STAT. § 893.735 creates the 45-day limitation period,
stating in pertinent part:

(2) 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….[7]

(3) In this section, an action seeking a remedy
available by certiorari is commenced at the time that the
prisoner files a petition seeking a writ of certiorari with a
court.

See also Johnson, 241 Wis. 2d 407, ¶5 (“Failure to timely file a petition for
certiorari under … § 893.735 may result in dismissal.”).

¶22 We pause to note terminology that could generate confusion.
Subsection (3) defines commencement of the action in terms of “the time that the
prisoner files a petition.” WIS. STAT. § 893.735(3) (emphasis added.) This would
appear to define the commencement of the action to be the moment when a writ
petition submitted by a prisoner is stamped “filed” by the clerk of circuit court, or
at least when the clerk should stamp the writ petition as “filed.” But, taking into
account case law that describes various equitable tolling rules, commencement of
the action is best understood as the moment when a prisoner has deposited in a

7
Mitchell does not argue that the delay, if any, between the secretary’s decision and his
actual notice of it should have tolled the 45-day deadline.

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No. 2022AP1076

prison mailbox all the required documents.8 See State ex rel. Shimkus v.
Sondalle, 2000 WI App 238, ¶¶9, 11, 14, 239 Wis. 2d 327, 620 N.W.2d 409
(adopting “prison mailbox rule,” which tolls 45-day deadline for the days needed
for complete petition materials to be mailed to the circuit court). For these
reasons, while usage of the verb “file” as shorthand is understandable—indeed, it
is the verb used in § 893.735(3)—it can be misleading to speak in terms of a
requirement to “file” a writ petition with 45 days. The rule is that prisoners have
45 days from the time the action accrues, not counting days properly tolled, to
submit all required documents to the circuit court by placing them in a prison
mailbox.

¶23 Turning to WIS. STAT. § 801.02(7)(c), this paragraph describes the
scope of the administrative-process documents that “shall” be submitted by the
prisoner seeking a writ of certiorari in order to commence an action:

(c) At the time of filing the initial pleading to
commence an action or special proceeding, including a
petition for a common law writ of certiorari, related to
prison or jail conditions, a prisoner shall include, as part of
the initial pleading, documentation showing that he or she
has exhausted all available administrative remedies. The
documentation shall include copies of all of the written
materials that he or she provided to the administrative
agency as part of the administrative proceeding and all of
the written materials the administrative agency provided to
him or her related to that administrative proceeding. The

8
As discussed more fully below, this example assumes that, at the time of this
submission, the prisoner has not requested other required documents that are not within the
prisoner’s control, which necessarily delays the commencement of the action through the required
complete filing, but can also provide a distinct basis to toll the filing deadline. See Tyler, 257
Wis. 2d 606, ¶¶2, 11-12 (mailbox rule applies “only after a prisoner deposits for mailing a
petition that is complete, in proper form and accompanied by the required filing fee or fee-waiver
documents”; discussing other applications of tolling deadline to commence action with a
complete submission based on a “loss of control rationale”).

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No. 2022AP1076

documentation shall also include all written materials
included as part of any administrative appeal. The court
shall deny a prisoner’s request to proceed without the
prepayment of fees and costs under [WIS. STAT.
§] 814.29(1m) if the prisoner fails to comply with this
paragraph or if the prisoner has failed to exhaust all
available administrative remedies.

¶24 We now summarize the combined effects of the commencement-of-
action and limitation-period features of WIS. STAT. § 893.735(2)-(3) and the
submission-of-administrative-process documents requirement in WIS. STAT.
§ 801.02(7)(c). 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”
generated in the administrative proceedings that the prisoner must pursue before
seeking the writ. In other words, as discussed further below, the administrative-
process documents expansively described in § 801.02(7)(c) are required to timely
pursue a prepayment waiver;9 and they are also required to timely commence the
writ action.10

¶25 Applying these rules here, if the limitation period was not equitably
tolled for purposes of the submission of required administrative-process
documents, then Mitchell’s writ petition was properly dismissed by the circuit

9
See State ex rel. Walker v. McCaughtry, 2001 WI App 110, ¶¶17-18, 244 Wis. 2d 177,
629 N.W.2d 17 (documents required under WIS. STAT. § 801.02(7)(c) are among those necessary
to obtain order waiving prepayment of costs and fees).
10
See Tyler, 257 Wis. 2d 606, ¶2 (“[T]he ‘mailbox rule’ tolls the statutory filing deadline
only after a prisoner deposits for mailing a petition that is complete, in proper form[,] and
accompanied by the required filing fee or fee-waiver documents.”); see also State ex rel.
Shimkus v. Sondalle, 2000 WI App 238, ¶9, 239 Wis. 2d 327, 620 N.W.2d 409 (noting that even
if a prisoner makes a submission within the 45 days, the circuit court “may still decline to allow
the action to proceed if the fee and other requirements of [WIS. STAT.] §§ 801.02 and 814.29 are
not met”).

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No. 2022AP1076

court. This is because, as Mitchell does not now dispute, he did not submit all of
the required administrative-process documents until May 10, eight days after the
May 2 end of the limitation period.

¶26 Mitchell’s central argument on this issue is that application of the
limitation period to his submissions was subject to equitable tolling under
applicable case law. We disagree.

¶27 The general rule is that, for purposes of WIS. STAT. § 893.735(2),
tolling of the 45-day clock for prisoners to commence actions “begins when the
[required] documents over which prisoners have control have been mailed, and all
of the [required] documents over which prisoners have no control have been
requested” by the prisoners. State ex rel. Walker v. McCaughtry, 2001 WI App
110, ¶¶17-18, 244 Wis. 2d 177, 629 N.W.2d 17. The clock resumes running when
the required and timely requested documents come to be “within the prisoner’s
control, such as when a prisoner receives a [‘three strikes’] certification for
forwarding to the court.”11 Id., ¶18. The rationale for this tolling rule is that there
are many restrictions on the activities of persons confined in prisons that affect
their ability to litigate in the same way that persons outside prisons can. The rule
provides “an equitable solution for prisoners seeking to comply” with the 45-day
limitation period, requiring the timely submission of required documents over
which prisoners have control or that they have timely requested. Id., ¶¶15, 17
(citing reasoning in Houston v. Lack, 487 U.S. 266, 271 (1988)), which

11
Apparently the statement related to Mitchell’s trust account was sent directly by prison
staff to the circuit court, whether or not this document was also given directly to Mitchell at the
same time. Under the logic of Walker, 244 Wis. 2d 177, ¶¶17-18, tolling relative to this
document would have continued until the moment this document was received by the court.

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No. 2022AP1076

established prison mailbox rule for federal pro se prisoners, premised on the
relaxed procedural requirements traditionally afforded to pro se prisoners whose
potential litigation activities are necessarily restricted—for example, prisoners
have no choice but to rely on prison authorities to file their pleadings).

¶28 The general lack-of-control rule as stated in Walker does not help
Mitchell here. This is because he does not dispute that he had control over all of
the administrative-process documents before the May 2 end of the limitation
period and he did not submit the last of them until May 10. As Walker explains,
prisoners must “comply with the deadline to the extent they have control over the
relevant documents,” otherwise prisoners would have an advantage “over other
litigants, contrary to legislative intent.” Walker, 244 Wis. 2d 177, ¶¶17-18; see
also id., ¶20 (noting that “documents over which Walker had control” in that case
included “the documentary proof of exhaustion of administrative remedies”).

¶29 Mitchell’s argument rests heavily on the fact that his April 26
affidavit averred the following regarding his request for a waiver from prepayment
of filing costs and fees, as summarized above. On April 25, he had requested from
the prison’s business office a copy of his current prison trust fund account
statement, which had not yet been produced. Based on this averment, he contends,
the 45-day limitation period was tolled for all purposes—including the required
submission of administrative-process documents—until the circuit court deemed
the writ petition filed on May 17. In purported support, Mitchell cites State ex rel.
Steldt v. McCaughtry, 2000 WI App 176, 238 Wis. 2d 393, 617 N.W.2d 201. But
as we now explain, Steldt addresses a narrow issue and does not support
Mitchell’s current argument.

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No. 2022AP1076

¶30 In Steldt, we consolidated the appeals of three prisoners who
pursued similar arguments in challenging dismissal of their writ petitions and we
addressed one question that was common to all three appeals. Id., ¶¶2, 14, 17-18.
That question was the following: When a prisoner has submitted all required
documents before the 45-day period has run, including all documents necessary to
establish a waiver of prepayment of the filing costs and fees, is the 45-day period
tolled for “the time taken by the [circuit] court to determine whether the prisoner
must pay any fees before proceeding” because this determination “is out of the
prisoner’s control”? Id., ¶17. Interpreting multiple statutes, we answered yes. Id.
Steldt neither refers generally to administrative-process documents nor specifically
to WIS. STAT. § 801.02(7)(c).12 The reasoning in that case simply does not apply
to the facts here, because it is not disputed that Mitchell did not submit all required
documents before the 45-day period elapsed. In sum, Steldt addresses equitable
tolling of only that time which the circuit court uses to consider whether the
requirements for waiver of the prepayment of filing costs and fees are satisfied.
Steldt does not suggest that a prisoner’s failure to timely file all administrative-
process documents under § 801.02(7)(c) is excused if there is a delay in the
prisoner obtaining documents needed for the waiver of prepayment under WIS.
STAT. § 814.29(1m) that have been timely requested by the prisoner.

¶31 Tyler is a closer match to the facts here. In that case, we determined
that the “fatal flaw” in the prisoner’s request to apply the tolling rule is that the

12
For context we note that, at the time Steldt, 238 Wis. 2d 393, was issued, WIS. STAT.
§ 801.02(7)(c) (1999-2000) contained the same wording as now appears in the current version of
§ 801.02(7)(c). Thus, the requirement that the prisoner timely submit all administrative-process
documents existed at that time, but it was not at issue in Steldt.

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No. 2022AP1076

prisoner “did not place all of the required documents” that were in the prisoner’s
control in a prison mailbox until after the 45-day period elapsed. See State ex rel.
Tyler v. Bett, 2002 WI App 234, ¶3, 257 Wis. 2d 606, 652 N.W.2d 800. We
explained that the tolling rule should not be used to “reward” prisoners with “extra
time to remedy matters” that are “within [their] control.” Id., ¶16.

¶32 Mitchell makes an alternative argument that is not tied to case law
addressing equitable tolling. He contends that his failure to timely submit all
administrative-process documents was “inconsequential” and “harmless.” This is
so, he argues, because the two documents regarding the administrative process that
he timely submitted—the warden’s decision affirming the committee decisions
and the secretary’s decision accepting rejection of the inmate complaint—establish
that he had in fact exhausted all administrative remedies.

¶33 There is logic to Mitchell’s position insofar as Mitchell could not
have obtained these two documents as they now appear in the record without
having in fact exhausted all potential administrative remedies. See Walker, 244
Wis. 2d 177, ¶3 (noting that after the warden affirmed the disciplinary
committee’s determinations and the secretary adopted a recommended dismissal
of his inmate complaint, “Walker had exhausted all of his appeals within the
corrections system.”). As referenced supra, n.2, when the terms of WIS. STAT.
§ 801.02(7)(c) are considered as a whole, it could create confusion that the statute
refers in part to the requirement that a prisoner submit “documentation showing
that [the prisoner] has exhausted all available administrative remedies.” Mitchell
timely provided proof of exhaustion.

¶34 Nevertheless, the pertinent statutes unambiguously require more. In
order to commence the action, Mitchell had to submit to the circuit court, as part

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No. 2022AP1076

of his “initial pleading” within the 45 days, all documents related to the
administrative process. See WIS. STAT. §§ 893.735(2)-(3), 801.02(7)(c).
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. The apparent
legislative intent is to require prisoners to provide the court with a complete
picture of what occurred in the administrative process when a writ action is
commenced and before a response is required from the respondent. This is what
Mitchell failed to do. Thus, he did not satisfy the requirements under the only
reasonable interpretation of §§ 893.735(2) and 801.02(7)(c). If the legislature had
meant to require only the documents that Mitchell timely submitted, it would have
used different terms. It would be for the legislature to relax the requirement to
require only that prisoners submit documents sufficient to establish exhaustion-in-
fact.13

13
Although it does not affect the outcome here, we observe that Mitchell has the better
argument regarding one unsupported position taken by the State in this appeal. The State argues
that, even beyond Mitchell’s failure to submit to the circuit court all administrative-process
documents in his possession before May 2, 2022, Mitchell’s submissions were untimely because
he did not request the certified copy of the trust fund account statement until five days before the
45-day limitation elapsed. According to the State, Mitchell’s delay in requesting that document
caused him to “miss[] the filing deadline due to his own conduct.” The State bases this position
primarily on a misinterpretation of statements in Walker, as we now explain.

The State cites the following two aspects of Walker. First, the 45-day limitation elapsed
in that case on July 19, and under one possible scenario Walker did not request a trust account
statement until mid-September, long after the deadline had passed. Walker, 244 Wis. 2d 177,
¶¶11, 24. The court observed that if that is what occurred, “Walker missed the filing deadline due
to his own dilatory conduct.” Id., ¶24. Second, the court in Walker emphasized that prisoners
are entitled to be treated equitably with other litigants but not advantaged over other litigants. Id.,
¶18. Neither of these observations in Walker cited by the State support its position to the
following effect: When a prisoner makes a request, before the 45-day deadline, for documents
that must be timely submitted and that are not already in the prisoner’s control, equitable tolling
cannot apply when that request is made “too late.”
(continued)

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No. 2022AP1076

B. Mitchell fails to show that the actions or inactions of the clerk are
relevant

¶35 Mitchell makes an alternative argument based on action or inaction
by the clerk of circuit court, even if equitable tolling does not apply. The
argument is that the clerk, upon the clerk’s receipt of the April 26, 2022
submissions from Mitchell, had the ministerial responsibility under WIS. STAT.
§ 59.40(2)(a) to treat the writ petition as “filed.” See § 59.40(2)(a) (providing in
pertinent part that clerks of court “shall” “[f]ile and keep all papers properly
deposited with” them “in every action or proceeding unless required to transmit
the papers”). According to Mitchell, if the clerk had filed Mitchell’s writ petition
upon the clerk’s receipt, it would have been timely. There are several aspects of
this argument that are unclear to us. But we resolve this issue based on one
argument by the State, namely, that it does not matter when the clerk deemed the
writ petition to be “filed.” This is because, regardless of any act or omission of the
clerk, the circuit court had the ultimate responsibility under WIS. STAT.
§ 893.735(2) to determine whether Mitchell had timely filed all required
documents. As discussed above, there is no dispute that Mitchell failed to timely
submit at least some required administrative-process documents. Put differently,
Mitchell is wrong when he argues that the clerk caused the dismissal through what

The State also cites non-binding authority for the proposition that equitable tolling
applies only when an “extraordinary circumstance” prevents a prisoner from submitting
documents timely, but the State fails to show that this proposition is part of Wisconsin law. We
agree with Mitchell that the State fails to explain how such an “extraordinary circumstance”
notion could provide Wisconsin courts with a principled, objective guideline to use in
determining which prisoner requests for documents are made before the 45-day deadline but “too
late” and which are not “too late.” In sum, the State provides no authority for the proposition that
a request made before the 45-day deadline can or must be deemed to have been made “too late”
for purposes of equitable tolling.

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No. 2022AP1076

Mitchell describes as the clerk’s “refusal to comply with its statutory obligation to
file Mitchell’s petition upon receipt.”

¶36 Mitchell cites case law supporting the proposition that a clerk of
circuit court does not have judicial powers and instead acts in an official capacity
exclusively pursuant to clerk-specific duties set forth in statutes. He also clarifies
that he is not arguing that clerks may never decline to accept papers for “filing,”
but instead only that clerks may not decline to do so on the ground that they are
part of a set of submissions that is not yet complete for a particular purpose.
Putting aside the merits of these points, however, Mitchell fails to come to grips
with the dispositive point in this case: the circuit court had the responsibility,
under WIS. STAT. § 893.735(2), to decide whether the submissions were timely—
regardless of anything the clerk did or did not do.14

II. THE PROPER CONSEQUENCE IS DISMISSAL OF THE WRIT
PETITION

¶37 Relying on his interpretation of WIS. STAT. § 801.02(7)(c) and a
closely related statute, § 801.02(7)(d), Mitchell argues that, even if his
submissions were not timely, the exclusive appropriate response for the circuit
court was to deny his request for waiver of prepayment of filing costs and fees.

14
We emphasize that we are not asked to decide what might happen if a clerk of circuit
court provides incorrect information to a prisoner or in some other manner misdirects or hinders a
prisoner’s ability to meet the 45-day deadline for submissions. See Steldt, 238 Wis. 2d 393, ¶16
(“While we acknowledge that circuit court clerks have the discretion to refuse to file any paper
without payment of the appropriate fees, it is unreasonable for that discretion to be exercised in a
manner that denies prisoners their ability to bring certiorari actions.”). We reject only Mitchell’s
narrow argument that here the clerk’s “refus[al] to file” his submissions “upon receipt”
“interrupted” a judicial procedure and therefore should result in reversal of the circuit court order
dismissing this action.

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No. 2022AP1076

According to Mitchell, the court did not have authority under § 801.02(7)(c) to
dismiss his writ petition as a result of his failure to timely submit all required
administrative-process documents. We reject this based on controlling precedent
and our interpretation of all pertinent statutes when they are interpreted in proper
context. See Kalal, 271 Wis. 2d 633, ¶46 (“[S]tatutory language is interpreted in
the context in which it is used; not in isolation but as part of a whole; in relation to
the language of surrounding or closely-related statutes; and reasonably, to avoid
absurd or unreasonable results.”).15

¶38 At supra, ¶23, we quote WIS. STAT. § 801.02(7)(c), which sets forth
the requirement that prisoners include in their timely submissions all
administrative-process documents. Mitchell directs us to its final sentence: “The
[circuit] court shall deny a prisoner’s request to proceed without the prepayment of
fees and costs under [WIS. STAT. §] 814.29(1m) if the prisoner fails to comply
with this paragraph or if the prisoner has failed to exhaust all available
administrative remedies.” Mitchell’s point is that this provides only one adverse

15
Separately, we note two unrelated additional arguments by the parties that do not play
any role in our resolution of this appeal.

First, Mitchell’s opening brief on appeal contends that dismissal of his writ petition is not
appropriate because his failure to timely submit administrative-process documents within his
control was “harmless.” But, as the State points out, “harmless error analysis does not apply”
here, in part because there was no error by the circuit court if the court correctly applied the
pertinent statutes to the facts before it. Mitchell concedes the point by failing to respond to this
point in his reply brief. See United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304
Wis. 2d 750, 738 N.W.2d 578 (appellant’s failure to respond in reply brief to argument made in
response brief may be taken as concession).

Second, we do not address the thinly developed references by both parties regarding the
State’s assertion that the circuit court lost competency to issue the requested writ based on
Mitchell’s untimely submissions.

20
No. 2022AP1076

consequence for prisoners for failure to timely submit all administrative-process
documents and does not mention the consequence of writ petition dismissal.

¶39 Mitchell contrasts this with language in WIS. STAT. § 801.02(7)(d).
Paragraph (7)(d) explicitly authorizes the dismissal of a prisoner’s writ petition if
the prisoner seeks a waiver of the fee prepayment requirement but has
accumulated “three strikes.”16 Mitchell argues that the only reasonable
interpretation of these two statutory provisions is that the legislature has selected a
single consequence (denial-of-fee-waiver) in all cases in which the prisoner fails
to submit all administrative-process documents and a different single consequence
(dismissal-of-writ-petition) in all cases in which the prisoner seeks a waiver and
has “three strikes.”

¶40 Unfortunately, the closely related statutes are not models of clarity.
Mitchell’s argument is plausible if one’s attention is limited to the two sentences
that he highlights. But as we now explain, case law leaves no room for Mitchell’s
position. Beyond that, as we further explain, interpreting all closely related
statutes, Mitchell’s narrow focus on the last sentence in WIS. STAT. § 801.02(7)(c)
and the consequence stated in § 801.02(7)(d) misses the mark. This is because
these do not establish that denial of a prepayment waiver is the exclusive adverse

16
Explaining more fully, writ petition actions must be dismissed under WIS. STAT.
§ 801.02(7)(d) when a prisoner has on at least three prior occasions had an action dismissed for
the reasons listed in WIS. STAT. § 802.05(4)(b)1.-4., and when the prisoner petitions the circuit
court for a waiver from prepayment of filing costs and fees. See § 801.02(7)(d); State ex rel.
Coleman v. Sullivan, 229 Wis. 2d 804, 601 N.W.2d 335 (Ct. App. 1999) (prisoner’s action will
be dismissed if the prisoner seeking a waiver of prepayment of filing costs and fees has filed three
previous frivolous or improper actions or appeals).

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No. 2022AP1076

consequence when the prisoner fails to timely submit all administrative-process
documents.

¶41 Addressing case law first, this court has stated that “[t]he absence
of” “[a]ll documentary evidence of exhaustion of administrative remedies” under
WIS. STAT. § 801.02(7)(c), which “is considered part of the initial pleading and
must be attached to all copies of” the writ petition, “can lead to the [circuit] court’s
rejection of the petition.” State ex rel. Locklear v. Schwarz, 2001 WI App 74,
¶22, 242 Wis. 2d 327, 629 N.W.2d 30 (emphasis omitted). Walker and Tyler both
quote Locklear to the same effect. Walker, 244 Wis. 2d 177, ¶12; Tyler, 257
Wis. 2d 606, ¶12 n.6. The State cites Tyler on this issue and Mitchell fails to
reply, conceding the point.17

¶42 Turning to the statutory language, the last sentence of WIS. STAT.
§ 801.02(7)(c) does not state that denial of a petition to proceed without
prepayment of costs and fees is the “only” or “exclusive” consequence for failure
to include the administrative-process documents or show exhaustion. Instead,
when properly construed, that sentence merely identifies dismissal of a petition for
prepayment waiver as one consequence because additional remedies are
understood from context. The sentence must be understood in the context of the

17
We are bound to follow this precedent as explained in Cook v. Cook, 208 Wis. 2d 166,
189, 560 N.W.2d 246 (1997). But we question the statutory basis for the particular feature of the
case law cited in the text that the initial pleading of a prisoner who is seeking a prepayment
waiver must include a “three strikes” certification created by the Wisconsin Department of
Justice. WISCONSIN STAT. § 801.02(7)(d) speaks in terms of the litigation history of the prisoner,
which effectively requires the prisoner who is seeking waiver of prepayment to plead that the
prisoner does not have “three strikes.” But the statute does not speak in terms of a required
certificate. Nonetheless, the certificate is required given the controlling case law. It would be for
our supreme court, through new interpretation, or the legislature, through new lawmaking, to
create a different rule. Further, no aspect of the “three strikes” rule is at issue in this appeal.

22
No. 2022AP1076

combined meaning of WIS. STAT. §§ 893.735(2)-(3) and 801.02(7)(c), which as
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.

¶43 Significantly, as the State points out, Mitchell’s argument overlooks
the hypothetical case in which a prisoner prepays the filing costs and fees, yet fails
to timely submit all administrative-process documents. If Mitchell’s interpretation
were correct, then WIS. STAT. § 801.02(7)(c) would have no effect in that
hypothetical case. This would create starkly different circumstances between writ
actions in which prisoners prepay costs and fees and those in which prisoners seek
waivers of prepayment. Only in the writ actions in which a prisoner seeks waiver
of prepayment would the prisoner have to include in the prisoner’s “initial
pleading” a complete written record of administrative proceedings. When the
prisoner is prepaying, no such record would be brought before the court at this
early stage. Given that the apparent purpose of the circuit court’s preliminary
review of the writ petition submissions is to determine, in part, if the writ petition
is frivolous or fails to raise a claim, regardless of indigency, Mitchell fails to show
that this is a result that the legislature could have intended given the contextual
statutory signals to the contrary. See WIS. STAT. § 802.05(3)(a)-(b); State ex rel.
Schatz v. McCaughtry, 2003 WI 80, ¶¶15-16, 263 Wis. 2d 83, 664 N.W.2d 596
(“initial pleading review procedure advances [the] objectives” of Prisoner
Litigation Reform Act to reduce costs of “excessive or otherwise inappropriate
prisoner-initiated litigation”).

¶44 This is all the more clear given what is at issue in these certiorari
actions. The pertinent standards for determining if the petitioner has stated a

23
No. 2022AP1076

viable claim on certiorari review are limited to review of a narrow set of possible
errors by the agency in how it handled the administrative process, which is
reflected in the administrative-process documents. See State ex rel. Ortega v.
McCaughtry, 221 Wis. 2d 376, 385, 585 N.W.2d 640 (Ct. App. 1998) (“Judicial
review on certiorari is limited to whether the agency’s decision was within its
jurisdiction, the agency acted according to law, its decision was arbitrary or
oppressive and the evidence of record substantiates the decision.”). Mitchell fails
to reply to related points made by the State.

¶45 It is true that the legislature makes other distinctions among
prisoners in this general context. For example, the “three strikes” barrier created
by WIS. STAT. §§ 801.02(7)(d) and 814.29(1m) affects only those prisoners who
seek waivers of prepayment and does not affect prisoners who prepay the filing
fee. But the rationale for this distinction is obvious. The prisoner who has filed
three frivolous or meritless petitions has lost the benefit of waiver of prepayment
and is therefore required to save prison funds before filing a new petition. That
would be quite different from establishing a rule under which only those prisoners
who seek prepayment waivers must submit timely all administrative-process
documents. It is difficult to imagine a rationale for such a rule and again Mitchell
provides none.

¶46 For the first time in his reply brief, Mitchell briefly suggests that
there is a conflict between WIS. STAT. § 893.735(2), with its 45-day limitation
period, and WIS. STAT. § 801.02(7)(c), with its requirement to submit
administrative-process documents referring only to the consequence of dismissal
of a petition for prepayment waiver. His argument is that § 801.02(7)(c) controls
as the more specific statute. We disagree that there is a conflict for reasons we
have already stated. The prisoner must timely submit all of the administrative-

24
No. 2022AP1076

process documents whether or not the prisoner requests waiver of prepayment, and
§ 801.02(7)(c) simply clarifies that prepayment petitions are dismissed when the
prisoner does not timely submit all administrative documents and show
exhaustion.

CONCLUSION

¶47 For all of these reasons, we affirm the circuit court’s order
dismissing the action.

By the Court.—Order affirmed.

25