The bill requires a prisoner, at the time of filing any action related to prison or
jail conditions, to provide all of the following: 1) documentation showing that he or
she has exhausted all administrative remedies; 2) copies of all of the written
materials that he or she provided to the administrative agency; and 3) copies of all
written materials the administrative agency provided to him or her as part of the
administrative proceeding.
Limit on filing of actions by certain persons
Except when the prisoner is in danger of serious injury, the bill requires a court
that receives papers from a prisoner commencing a civil action to dismiss the action
if the prisoner has had a court proceeding dismissed on 3 or more prior occasions
because the proceeding was frivolous, was used for an improper purpose, such as to
harass, sought monetary damages from a person immune from such damages, or
failed to state a claim upon which relief could be granted.
Waiver of answer
Currently, if a person, including a prisoner, commences an action, the
defendant in the action has 20 days after service of the complaint to serve an answer
in response to the complaint. In certain cases the state has 45 days to answer a
complaint. This bill gives a defendant in an action commenced by a prisoner the right
to waive any response to the complaint. Under the bill, the failure to respond to an
action related to prison or jail conditions is an affirmative defense against all of the
allegations made in the complaint. The court is required by the bill to review the
pleadings and, if the court determines the plaintiff may prevail on the merits, order
the defendant to respond to the pleadings.
Costs and fees in prisoner actions
The bill provides that, if a prisoner brings an action related to prison or jail
conditions, no costs may be awarded against an employe of the state or a public
agency who is acting in his or her official capacity or against the state or a public
agency. If the state or public agency prevails in an action brought by a prisoner
related to prison or jail conditions, the bill provides that the prisoner must pay the
court costs and filing fees. If a prisoner bringing an action requests permission to
bring the action without the payment of fees, the bill requires the prisoner to do all
of the following:
1. Submit an affidavit that shows that he or she is unable to pay the fees.
2. Submit an affidavit stating that he or she has paid all previously assessed
court costs and fees.
3. Provide a certified copy of his or her prison trust fund account statement.
If the court determines that the prisoner has some money in a trust fund
account, the court must order the prisoner to pay part of the court fees immediately,
based on the amount available in the prisoner trust fund account, and pay the rest
over time from the prisoner trust fund account. The bill allows the court to waive the
payment of fees and the submission of the required documents if the prisoner is in
danger of serious physical harm.
Payment of judgments
Under the bill, if a court enters a judgment for a monetary award to a prisoner,
the court shall order that the award be paid in the following order:
1. To satisfy any unpaid court order of restitution.
2. To pay any civil judgment in favor of a crime victim.
3. To reimburse the department of justice for any awards made to crime victims.
4. To pay any unpaid court costs or filing fees.
5. To reimburse DOC for any loans made to the prisoner to enable him or her
to engage in litigation.
6. To victims of the prisoner's crimes who are notified of the award and petition
the court for payments.
7. To the prisoner.
Change in mandatory release date; loss of good time
Under current law, with certain exceptions, a person sentenced to prison is
entitled to mandatory release on parole after he or she has served two-thirds of his
or her prison sentence. A prison inmate's mandatory release date is subject to
extension if he or she violates any regulation of the prison or refuses or neglects to
perform a required or assigned duty.
In addition, under current law, a person sentenced to jail is eligible to earn "good
time" in the amount of one-fourth of his or her term if he or she maintains good
behavior. A jail inmate may lose good time if he or she violates any regulation of the
jail or refuses or neglects to perform a required duty.
This bill allows a court to order that a prison inmate's mandatory release date
be extended or that a jail inmate be deprived of good time if the court finds that the
inmate commenced an action or special proceeding for a malicious purpose or solely
to harass the other party or that the inmate testified falsely or provided false
evidence or information to the court. The court must specify the number of days by
which a inmate's mandatory release date is extended or the number of days of good
time a jail inmate is to lose.
Discovery
Currently, parties to an action may obtain discovery by various methods,
including depositions, interrogatories, production of documents and physical
examinations. The frequency and use of these methods is not limited unless the court
orders otherwise. Under this bill, in an action commenced by a prisoner, the prisoner
may not obtain discovery before the court receives a copy of the defendant's
responsive pleading, unless the court orders a party to submit to discovery. If the
defendant waives his or her answer, or moves to dismiss the action, the prisoner may
not obtain discovery until the court determines if the action may continue. Under
the bill, any discovery by a prisoner is limited to what is essential to his or her case,
and must result in minimal intrusion in the activities of the person subject to
discovery. The bill limits the number of requests a prisoner may make for
interrogatories, production of documents or admissions to 15, unless good cause is
shown for additional requests.
Injunctive relief
Currently, as part of an action, a party may seek and receive a temporary
injunction to prevent another person from committing some act after giving the other
party a chance to comment regarding the injunction. This bill requires a court, before
issuing an injunction in an action regarding prison or jail conditions, to give the
attorney representing the prison or jail the opportunity for a hearing. Under the bill,
any temporary injunction issued regarding prison or jail conditions expires 90 days
after it is issued unless the court orders that the injunction be extended. The bill
requires that the temporary injunction require only what is necessary to correct the
harm, is the least intrusive means necessary to correct the harm and does not require
a governmental official or agent to exceed his or her authority or violate state law or
a local ordinance except under limited circumstances.
Appeals
The bill allows the appellate court to dismiss an appeal without requiring the
reply by the respondent if the appeal is frivolous, used for an improper purpose, seeks
monetary damages from a person immune from such damages or if there is no ground
upon which relief may be granted.
Public records
Under current law, a person has the right to inspect and receive a copy of a
public record. The custodian of the record may impose a fee for a copy of the record
and may require prepayment if the fee imposed is over $5. This bill allows the
custodian of the record to require prepayment of the fee if the copy of the record is
requested by a person confined in a local, state or federal prison and that person has
failed to pay any fee for a previously requested record. The bill also allows the
custodian of the record to deny a request for a record made by a person confined in
a local, state or federal prison if the person has not paid any fee imposed for a
previously requested record.
Attorney general opinions
The bill provides immunity from civil liability for any public official, employe
or agent for his or her acts or omissions committed in reliance upon a written opinion
of the attorney general.
Litigation loans to prisoners
Under current law, DOC may make loans to a prisoner without sufficient funds
in his or her general account to pay for paper, photocopying and postage for
correspondence with courts, attorneys, parties in litigation, the inmate complaint
review system or the parole board. Generally, no inmate may receive more than $200
in such loans annually, except that any amount of the debt the inmate repays during
the year may be advanced to the inmate again and the $200 loan limit may be
exceeded in cases of extraordinary need.
This bill provides that if a prisoner fails to repay a loan made by DOC to pay
expenses associated with litigation commenced by the prisoner, the warden of the
institution where the prisoner is located may submit, to the circuit court for the
county in which the institution is located, a certification of the amount of the loans
that are unpaid. The certified amount of the unpaid loans then becomes a judgment
against the prisoner unless the prisoner submits a written objection within 20 days
after the court receives the warden's certification. If the prisoner submits a written
objection, the court must treat the objection as the commencement of a civil action
by the prisoner, and the prisoner bears the burden of proving that the certified
amount of the unpaid loans is incorrect.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB688, s. 1
1Section
1. 19.35 (3) (f) of the statutes is amended to read:
AB688,6,62
19.35
(3) (f) An authority may require prepayment by a requester of any fee or
3fees imposed under this subsection if the total amount exceeds $5
or if the requester
4is a prisoner, as defined in s. 301.01 (2), or is a person confined in a federal
5correctional institution located in this state, and he or she has failed to pay any fee
6that was imposed by the authority for a request made previously by that requester.
AB688, s. 2
7Section
2. 19.35 (3) (g) of the statutes is created to read:
AB688,6,118
19.35
(3) (g) If a prisoner, as defined in s. 301.01 (2), or a person confined in a
9federal correctional institution located in this state has failed to pay any fee imposed
10by the authority for a previous request, the authority may deny a request by the
11prisoner or person.
AB688, s. 3
12Section
3. 301.048 (3) (d) of the statutes is amended to read:
AB688,6,1713
301.048
(3) (d) A person may seek review of a final decision of the department
14of corrections, or of the division of hearings and appeals in the department of
15administration acting under s. 304.06 (3), relating to
denials of eligibility for or
16placement in sanctions
, or relating to discipline or revocation under or termination
17from the intensive sanctions program only by the common law writ of certiorari.
AB688, s. 4
18Section
4. 301.328 of the statutes is created to read:
AB688,6,22
19301.328 Judgment for litigation loans to prisoners. (1) In this section,
20"litigation loan" means a loan made to a prisoner by the department to pay for paper,
21photocopying, postage or other expenses associated with litigation commenced by
22the prisoner.
AB688,7,9
23(2) If a prisoner fails to repay a litigation loan to the department, the warden
24of the institution where the prisoner is incarcerated, imprisoned, confined or
25detained may submit a certification under oath to the clerk of circuit court in the
1county where the institution is located. The certification shall state the amount of
2litigation loans unpaid, the name and location of the prisoner and such other
3information as the court considers necessary. The court shall order that the amount
4certified by the warden be a judgment on behalf of the state and against the prisoner
5if the prisoner fails to submit a written objection to the court within 20 days after the
6court receives the certification from the warden. If the prisoner timely submits a
7written objection to the certification, the court shall consider the objection to be a
8complaint in a civil action and proceed under the rules of procedure under ch. 799,
9without requiring the service of a summons or the payment of filing fees.
AB688,7,13
10(3) At the same time that the warden submits the certification to the court, the
11warden shall provide the prisoner with a copy of the certification. The warden shall
12attach to the certification provided to the prisoner a notice informing the prisoner of
13all of the following:
AB688,7,1714
(a) That if the prisoner fails to submit a written objection to the court within
1520 days after the court receives the certification from the warden, the court shall
16order that the amount certified by the warden be a judgment on behalf of the state
17and against the prisoner.
AB688,7,1918
(b) The name and address of the circuit court where the certification was
19submitted.
AB688,7,2220
(c) That if the prisoner timely objects to the certification, the objection will be
21considered a complaint for purposes of the commencement of a civil suit under ch.
22799.
AB688,7,2423
(d) That the prisoner is required to submit a copy of the objection to the warden
24at the time he or she submits the objection to the clerk of circuit court.
AB688, s. 5
25Section
5. 302.11 (1) of the statutes is amended to read:
AB688,8,6
1302.11
(1) The warden or superintendent shall keep a record of the conduct of
2each inmate, specifying each infraction of the rules. Except as provided in subs. (1g),
3(1m),
(1q), (7) and (10), each inmate is entitled to mandatory release on parole by the
4department. The mandatory release date is established at two-thirds of the
5sentence. Any calculations under this subsection or sub.
(1q) (b) or (2) (b) resulting
6in fractions of a day shall be rounded in the inmate's favor to a whole day.
AB688, s. 6
7Section
6. 302.11 (1q) of the statutes is created to read:
AB688,8,118
302.11
(1q) (a) An inmate who files an action or special proceeding, including
9a petition for a common law writ of certiorari, to which s. 807.15 applies shall have
10his or her mandatory release date extended by the number of days specified in the
11court order prepared under s. 807.15 (3).
AB688,8,1412
(b) Upon receiving a court order issued under s. 807.15, the department shall
13recalculate the mandatory release date of the inmate to whom the order applies and
14shall inform the inmate of his or her new mandatory release date.
AB688, s. 7
15Section
7. 302.11 (2) (c) of the statutes is amended to read:
AB688,8,1716
302.11
(2) (c) No extension under this
section subsection may require the
17inmate to serve more days in prison than provided for under the sentence.
AB688, s. 8
18Section
8. 302.11 (7) (b) of the statutes is amended to read:
AB688,9,219
302.11
(7) (b) A parolee returned to prison for violation of the conditions of
20parole shall be incarcerated for the entire period of time determined by the
21department of corrections in the case of a waiver or the division of hearings and
22appeals in the department of administration in the case of a hearing under par. (a),
23unless paroled earlier under par. (c). The parolee is not subject to mandatory release
24under sub. (1) or presumptive mandatory release under sub. (1g). The period of time
1determined under par. (a) may be extended in accordance with
sub. subs. (1q) and 2(2).
AB688, s. 9
3Section
9. 302.43 of the statutes is amended to read:
AB688,9,15
4302.43 Good time. Every inmate of a county jail is eligible to earn good time
5in the amount of one-fourth of his or her term for good behavior if sentenced to at
6least 4 days, but fractions of a day shall be ignored. An inmate shall be given credit
7for time served prior to sentencing under s. 973.155, including good time under s.
8973.155 (4). An inmate who violates any law or any regulation of the jail, or neglects
9or refuses to perform any duty lawfully required of him or her, may be deprived by
10the sheriff of good time under this section, except that the sheriff shall not deprive
11the inmate of more than 2 days good time for any one offense without the approval
12of the court.
An inmate who files an action or special proceeding, including a petition
13for a common law writ of certiorari, to which s. 807.15 applies shall be deprived of
14the number of days of good time specified in the court order prepared under s. 807.15
15(3).
AB688, s. 10
16Section
10. 303.07 (3) of the statutes is amended to read:
AB688,9,2417
303.07
(3) Each prisoner serving a sentence under this section who could have
18been sentenced to a state prison is subject to s. 302.11 (1), (1g)
, (1q) and (2). Each
19prisoner serving such a sentence may be transferred to a state prison upon
20recommendation of the superintendent and approval of the department. The county
21board may, pursuant to its regulations approved by the department, extend to all
22other prisoners similar pecuniary earnings and rewards, subject to similar
23conditions and limitations as those prescribed by s. 302.12 for prisoners in the
24Wisconsin state prisons.
AB688, s. 11
25Section
11. 304.06 (1) (b) of the statutes is amended to read:
AB688,10,15
1304.06
(1) (b) Except as provided in sub. (1m) or s. 302.045 (3), 961.49 (2) or
2973.0135, the parole commission may parole an inmate of the Wisconsin state
3prisons or any felon or any person serving at least one year or more in a county house
4of correction or a county reforestation camp organized under s. 303.07, when he or
5she has served 25% of the sentence imposed for the offense, or 6 months, whichever
6is greater. Except as provided in s. 939.62 (2m) or 973.014, the parole commission
7may parole an inmate serving a life term when he or she has served 20 years, as
8modified by the formula under s. 302.11 (1) and subject to extension
using the
9formulas under s. 302.11
(2) (1q) and (2), if applicable. The person serving the life
10term shall be given credit for time served prior to sentencing under s. 973.155,
11including good time under s. 973.155 (4). The secretary may grant special action
12parole releases under s. 304.02. The department or the parole commission shall not
13provide any convicted offender or other person sentenced to the department's custody
14any parole eligibility or evaluation until the person has been confined at least 60 days
15following sentencing.
AB688, s. 12
16Section
12. 801.02 (7) of the statutes is renumbered 801.02 (7) (c) and
17amended to read:
AB688,11,318
801.02
(7) (c) No prisoner
, as defined in s. 301.01 (2), may commence a civil
19action or special proceeding
against an officer, employe or agent of the department
20of corrections in his or her official capacity or as an individual for acts or omissions
21committed while carrying out his or her duties as an officer, employe or agent or while
22acting within the scope of his or her office, employment or agency
, including a petition
23for a common law writ of certiorari, with respect to the prison or jail conditions in the
24facility in which he or she is or has been incarcerated, imprisoned or detained until
25the person has exhausted
any all available administrative remedies
that the
1department of corrections has promulgated by rule. Except for petitions for a
2common law writ of certiorari, a prisoner commencing an action or special proceeding
3shall first comply with the provisions of s. 893.80 or 893.82.
AB688, s. 13
4Section
13. 801.02 (7) (a), (b), (d) and (e) of the statutes are created to read:
AB688,11,55
801.02
(7) (a) In this subsection:
AB688,11,116
1. "Correctional institution" means any state or local facility that incarcerates
7or detains any adult accused of, charged with, convicted of, or sentenced for any crime
8or that incarcerates or detains any juvenile alleged to be delinquent or adjudicated
9to be delinquent on the basis of conduct that, if committed by an adult, would be a
10crime. A correctional institution includes a Type 1 prison, as defined in s. 301.01 (5),
11a Type 2 prison, as defined in s. 301.01 (6), a county jail and a house of correction.
AB688,11,1412
2. "Prisoner" means any person who is incarcerated, imprisoned or otherwise
13detained in a correctional institution or who is arrested or otherwise detained by a
14law enforcement officer.
AB688,11,1715
3. "Prison or jail conditions" means any matter related to the conditions of
16confinement or to the effects of actions by government officers, employes or agents
17on the lives of prisoners, but excluding the fact or duration of the confinement.
AB688,11,1918
(b) Review by the common law writ of certiorari is a prisoner's exclusive remedy
19for doing any of the following:
AB688,11,2120
1. Challenging the validity of a decision relating to prisoner discipline, the
21revocation of probation or the denial or revocation of parole.
AB688,11,2522
2. Challenging the disposition of a complaint concerning prison or jail
23conditions, including a complaint concerning a program assignment, institution
24assignment or security classification, for which there is an adequate administrative
25remedy.
AB688,12,12
1(d) At the time of filing the initial pleading to commence an action or special
2proceeding, including a petition for a common law writ of certiorari, related to prison
3or jail conditions, a prisoner shall include, as part of the initial pleading,
4documentation showing that he or she has exhausted all available administrative
5remedies. The documentation shall include copies of all of the written materials that
6he or she provided to the administrative agency as part of the administrative
7proceeding and all of the written materials the administrative agency provided to
8him or her related to that administrative proceeding. The documentation shall also
9include all written materials included as part of any administrative appeal. The
10court shall deny a prisoner's request to proceed without the prepayment of fees and
11costs under s. 814.29 (1m) if the prisoner fails to comply with this paragraph or if the
12prisoner has failed to exhaust all available administrative remedies.
AB688,12,2113
(e) The court shall dismiss any action or special proceeding, including a petition
14for a common law writ of certiorari, commenced by any prisoner if that prisoner has,
15on 3 or more prior occasions, while he or she was incarcerated, imprisoned, confined
16or detained in a jail or prison, brought an appeal, writ of error, action or special
17proceeding, including a petition for a common law writ of certiorari, that was
18dismissed by a state or federal court for any of the reasons listed in s. 802.05 (3) (b)
191. to 4. The court may permit a prisoner to commence the action or special
20proceeding, notwithstanding this paragraph, if the court determines that the
21prisoner is in imminent danger of serious physical injury.
AB688, s. 14
22Section
14. 801.09 (2) (a) of the statutes is amended to read:
AB688,13,323
801.09
(2) (a) Within 20 days, or within 45 days if the defendant is the state
24or an officer, agent, employe or agency of the state
in an action or special proceeding
25brought within the purview of s. 893.82 or 895.46, exclusive of the day of service, after
1the summons has been served personally upon the defendant or served by
2substitution personally upon another authorized to accept service of the summons
3for the defendant; or
AB688, s. 15
4Section
15. 802.05 (3) of the statutes is created to read:
AB688,13,75
802.05
(3) (a) A court shall review the initial pleading as soon as practicable
6after the action or special proceeding is filed with the court if the action or special
7proceeding is commenced by a prisoner, as defined in s. 801.02 (7) (a) 2.
AB688,13,108
(b) The court may dismiss the action or special proceeding without requiring
9the defendant to answer the pleading if the court determines that the action or
10special proceeding meets any of the following conditions:
AB688,13,1111
1. Is frivolous, as determined under s. 814.025 (3).
AB688,13,1312
2. Is used for any improper purpose, such as to harass, to cause unnecessary
13delay or to needlessly increase the cost of litigation.
AB688,13,1414
3. Seeks monetary damages from a defendant who is immune from such relief.