State Ex Rel. L'Minggio v. Gamble

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 *76under § DOC 310.08(3).1 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.

*77¶ 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 *78corrections 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.

*79¶ 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 *80complaint 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 *81does 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.

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

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.