801.02(7)(a)1.
1. "Correctional institution" means any state or local facility that incarcerates or detains any adult accused of, charged with, convicted of, or sentenced for any crime. A correctional institution includes a Type 1 prison, as defined in
s. 301.01 (5), a Type 2 prison, as defined in
s. 301.01 (6), a county jail and a house of correction.
801.02(7)(a)2.
2. "Prisoner" means any person who is incarcerated, imprisoned or otherwise detained in a correctional institution or who is arrested or otherwise detained by a law enforcement officer. "Prisoner" does not include any of the following:
801.02(7)(a)2.b.
b. A person bringing an action seeking relief from a judgment terminating parental rights.
801.02(7)(a)2.c.
c. A person bringing an action seeking relief from a judgment of conviction or a sentence of a court, including an action for an extraordinary writ or a supervisory writ seeking relief from a judgment of conviction or a sentence of a court or an action under
s. 809.30,
809.40,
973.19 or
974.06.
801.02(7)(a)2.d.
d. A person bringing an action under
s. 809.50 seeking relief from an order or judgment not appealable as of right that was entered in a proceeding under
ch. 980 or in a case specified under
s. 809.30 or
809.40.
801.02(7)(a)2.e.
e. A person who is not serving a sentence for the conviction of a crime but who is detained, admitted or committed under
ch. 51 or
55 or
s. 971.14 (2) or
(5).
801.02(7)(a)3.
3. "Prison or jail conditions" means any matter related to the conditions of confinement or to the effects of actions by government officers, employees or agents on the lives of prisoners.
801.02(7)(b)
(b) 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.
801.02(7)(bm)
(bm) A prisoner commencing an action or special proceeding shall first comply with the provisions of
s. 893.80 or
893.82 unless one of the following applies:
801.02(7)(bm)1.
1. The prisoner is filing a petition for a common law writ of certiorari.
801.02(7)(bm)2.
2. The prisoner is commencing an action seeking injunctive relief and the court finds that there is a substantial risk to the prisoner's health or safety.
801.02(7)(c)
(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 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
s. 814.29 (1m) if the prisoner fails to comply with this paragraph or if the prisoner has failed to exhaust all available administrative remedies.
801.02(7)(d)
(d) If the prisoner seeks leave to proceed without giving security for costs or without the payment of any service or fee under
s. 814.29, the court shall dismiss any action or special proceeding, including a petition for a common law writ of certiorari, commenced by any prisoner if that prisoner has, on 3 or more prior occasions, while he or she was incarcerated, imprisoned, confined or detained in a jail or prison, brought an appeal, writ of error, action or special proceeding, including a petition for a common law writ of certiorari, that was dismissed by a state or federal court for any of the reasons listed in
s. 802.05 (3) (b) 1. to
4. The court may permit a prisoner to commence the action or special proceeding, notwithstanding this paragraph, if the court determines that the prisoner is in imminent danger of serious physical injury.
801.02 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 589 (1975);
1975 c. 218;
1981 c. 289,
317;
1995 a. 27;
1997 a. 133,
187.
801.02 Note
Judicial Council Note, 1981: Sub. (1) is amended to allow an action seeking an extraordinary remedy to be commenced in the same manner as any other civil action. Sub. (5) allows the additional option of using an order to shorten the time for filing a response to the complaint in lieu of a summons. This option is for the emergency situation when the case may be moot before a response would be filed. The order serves the same purpose as the alternative writ and the order to show cause used to initiate the action under writ procedures. In all other matters of procedure, the rules of civil procedure govern to the extent applicable. Sub. (5) applies only to procedure in the circuit court. In seeking an extraordinary remedy in the supreme court or court of appeals, s. 809.51, stats., should be followed. [Bill 613-A]
801.02 Annotation
Pursuant to sub. (5), a certiorari action may be commenced in three ways: 1) pursuant to sub. (1) allowing for a summons and complaint, 2) by service of an appropriate writ, or 3) by filing a complaint and serving it along with an order, in lieu of a summons, upon defendant. Nickel River Inv. v. LaCrosse Review Bd.,
156 Wis. 2d 429,
457 N.W.2d 333 (Ct. App 1990).
801.02 Annotation
A certiorari action may be commenced by filing and serving a summons and complaint pursuant to sub. (1). Tobler v. Door County,
158 Wis. 2d 19,
461 N.W.2d 775 (1990).
801.02 Annotation
The test to determine whether defects in summons and complaints are fatal is set forth. The trail court has jurisdiction where the error is technical and the complainant can show that the defendant was not prejudiced. Where the error is fundamental, no jurisdiction may attach. American Family Mut. Ins. v. Royal Ins. Co.
167 Wis. 2d 524,
481 N.W.2d 629 (1992).
801.02 Annotation
A summons that designated an attorney to receive the defendant's answer, but was signed by the plaintiff, was technically defective and did not deprive the court of personal jurisdiction. Dungan v. County of Pierce,
170 Wis. 2d 89,
486 N.W.2d 77 (Ct. App. 1992).
801.02 Annotation
Sub. (1) applies to the service of amended complaints. Archambault v. A-C Product Liability Trust,
205 Wis. 2d 400,
556 N.W.2d 392 (Ct. App. 1996).
801.02 Annotation
A summons served by publication under sub. (3) must be authenticated. Where an authenticated copy of the summons was published, but an unauthenticated copy was mailed together with authenticated copies of the original summons and complaint, there was a technical, but no fundamental, error. Burnett v. Hill,
207 Wis. 2d 110,
557 N.W.2d 800 (1997).
801.02 Annotation
An inmate challenging the calculation of his mandatory release date is not seeking relief from a judgment of conviction or a sentence of a court, does not fall within sub. (7) (a) 2. c., and is therefore a "prisoner" within the meaning of sub. (7) who must comply with the requirements of that subsection. State ex rel. Stinson v. Morgan,
226 Wis. 2d 100,
593 N.W.2d 924 (Ct. App. 1999).
801.02 Annotation
For a paper to be filed, it must be properly deposited with the clerk under s. 59.40 (2). "Properly" connotes complying with formality or correctness, but is not susceptible to exact definition. The delivery of papers to the clerk at his home after business hours was too far removed from legislative guidelines to be considered properly deposited. Granado v. Sentry Insurance,
228 Wis. 2d 794,
599 N.W.2d 62 (Ct. App. 1999).
801.02 Annotation
The sub. (7) (d) 3. dismissals rule does not apply when a prisoner has sufficient prison trust funds to pay the filing fee in full. A court order under s. 814.29 (1m) (d) is required to release the funds. State ex rel. Coleman v. Sullivan, 229 Wis.2d 804,
601 N.W.2d 335 (Ct. App. 1999).
801.02 Annotation
The definition of "correctional institution" in sub. (7) (a) 1. does not include an out-of-state county jail, and therefore a Wisconsin inmate sent to such a jail is not a prisoner under sub. (7) (a) 2. State ex rel. Speener v. Gudmanson, 2000 WI 78,
234 Wis. 2d 461,
610 N.W.2d 136.
801.02 Annotation
Sub. (7) (d), as applied to the petitioner, did not violate the constitutional guarantees of access to the courts or equal protection. State ex rel. Khan v. Sullivan, 2000 WI App 109,
235 Wis. 2d 260,
613 N.W.2d 203.
801.02 Annotation
A petitioner who seeks to overturn the revocation of probation by a writ of certiorari is a prisoner under sub. (7) (a) 2. A probation revocation is not analogous to a judgment of conviction or a sentence, and a writ of certiorari challenging revocation is not subject to the exclusion under sub. (7) (a) 2. c. State ex rel. Cramer v. Wisconsin Court of Appeals, 2000 WI 86,
236 Wis. 2d 473,
613 N.W.2d 591.
801.03
801.03
Jurisdiction; definitions. In this chapter, the following words have the designated meanings: