State ex rel. Ledford v. CIRCUIT COURT FOR DANE CTY.

• Citation: 599 N.W.2d 45,228 Wis.2d 768
• Decision Date: 10 June 1999
• Docket Number: No. 99-0939-W.,99-0939-W.
• Parties: STATE of Wisconsin EX REL. William N. LEDFORD, Petitioner, v. CIRCUIT COURT FOR DANE COUNTY and the Honorable Richard J. Callaway, presiding, Respondents.
• Court: Court of Appeals of Wisconsin

228 Wis.2d 768

599 N.W.2d 45

STATE of Wisconsin EX REL. William N. LEDFORD, Petitioner, v. CIRCUIT COURT FOR DANE COUNTY and the Honorable Richard J. Callaway, presiding, Respondents.

No. 99-0939-W.

Court of Appeals of Wisconsin.

Submitted on a petition April 9, 1999.

Decided June 10, 1999.

On behalf of the petitioner, the cause was submitted on the petition of William N. Ledford, pro se of Green Bay.

On behalf of the respondent, the cause was submitted on the response of James E. Doyle, attorney general, and Charles D. Hoornstra, assistant attorney general.

Before Dykman, P.J., Vergeront and Roggensack, JJ.

DYKMAN, P.J.

William N. Ledford petitions this court for a supervisory writ directing the circuit court of Dane County, the Honorable Richard J. Callaway presiding, to grant his petition to waive the fees and costs associated with his 42 U.S.C. § 1983 claim. The circuit court denied Ledford's petition after concluding that he failed to exhaust his administrative remedies by not filing a notice of claim under § 893.82, STATS.¹ Ledford argues that while the statutory notice-of-claim procedures may result in settlement, they do not qualify as an "administrative remedy" under 42 U.S.C. § 1997e(a). He therefore requests that we grant his petition for a writ allowing him to proceed with his federal claim without pre-payment of fees and costs. We conclude that the notice-of-claim procedures do not qualify as an administrative remedy and remand for the circuit court to determine whether Ledford is indigent and whether his claim is arguably meritorious. Because we grant relief on this issue, we need not address Ledford's remaining arguments.

BACKGROUND

Ledford, an inmate at the Columbia Correctional Institution, filed a summons and complaint under 42 U.S.C. § 1983, challenging WIS. ADM. CODE §§ DOC 309.02(14) and (16), which ban all materials depicting "nudity" or "pornography." He requested declaratory, injunctive and monetary relief. In addition to filing his summons and complaint, Ledford filed a petition for waiver of fees and costs and an affidavit of indigency, along with various supporting documents. Ledford made no claims under state law.² The circuit court denied Ledford's petition because it found that he failed to exhaust all available administrative remedies by not filing a notice of claim under § 893.82, STATS.³ Ledford moved for reconsideration, arguing that the notice-of-claim statute was not an administrative remedy that he needed to exhaust in order to proceed with his claim. He also contended that even if he were required to file a notice of claim, his failure to do so would only affect his request for monetary relief, not his request for declaratory and injunctive relief. Finally, he argued that exhaustion was not required, because none of the remedies he requested were available through the inmate complaint review system (ICRS) or the attorney general's office. The circuit court denied the motion. Ledford appeals.

DISCUSSION

A. Standard of Review

The dispositive issue is whether the notice of claim procedures set out in § 893.82, STATS., provide an administrative remedy that must be exhausted before a prisoner may file a 42 U.S.C. § 1983 claim in state court.⁴ The State contends that § 893.82 qualifies as an administrative remedy because it provides the state attorney general with an opportunity to effect a compromise without a civil action or proceeding. See § 893.82(1)(b). Ledford disagrees.

[1, 2]

The denial of a prisoner's petition to waive payment of fees and costs may be reviewed under our supervisory writ procedure. See State ex rel. Hansen v. Circuit Court, 181 Wis. 2d 993, 513 N.W.2d 139 (Ct. App. 1994). The issue of whether the procedures outlined in § 893.82, STATS., qualify as an administrative remedy presents a question of law that we review de novo. See State ex rel. Richards v. Circuit Court, 165 Wis. 2d 551, 554, 478 N.W.2d 29, 30 (Ct. App. 1991).

B. Development of the Law

In Patsy v. Board of Regents, 457 U.S. 496 (1982), the United States Supreme Court was confronted with a 42 U.S.C. § 1983 claim by a plaintiff who allegedly was denied a job because of her race and sex. Her claim was dismissed below because she allegedly failed to exhaust available administrative remedies. The Supreme Court reversed. The Court noted that the purpose of § 1983,⁵ was "to interpose the federal courts between the States and the people, as guardians of the people's federal rights—to protect the people from unconstitutional action under color of state law, whether that action be executive, legislative, or judicial." Id. at 503 (quoting Mitchum v. Foster, 407 U.S. 225, 242 (1972)). While the Court noted that Congress did not discuss an exhaustion requirement, it concluded that one was not intended. See id. at 502-03. Its conclusion was based on the historical evidence that: (1) Congress wanted individuals who had been threatened with, or who had suffered the deprivation of constitutional rights, to have immediate access to the federal courts notwithstanding any contrary state law; (2) Congress distrusted certain state authorities, believing that they were unwilling or unable to protect the constitutional rights of individuals or to punish those who violated such rights; and (3) Congress intended the law to provide dual or concurrent forums in the state and the federal system, so that a plaintiff could chose the forum in which to seek relief. See id. at 504-06.

The Court, however, recognized that Congress adopted an exception to this non-exhaustion principle with its passage of the Civil Rights of Institutionalized Persons Act of 1980 (CRIPA), 42 U.S.C. § 1997. See Patsy, 457 U.S. at 508.⁶

The Court accepted that § 1997e "carves out a narrow exception to the general no-exhaustion rule to govern certain prisoner claims, and establishes a procedure to ensure that the administrative remedies are adequate and effective." Id. at 510. The Court, however, was unwilling to expand upon this exception or apply it to non-prisoner cases. See id. at 510-11.

Six years later, the United States Supreme Court decided Felder v. Casey, 487 U.S. 131 (1988), which involved a challenge to Wisconsin's notice-of-claim statute. Under the notice-of-claim statute, a plaintiff intending to bring suit against a state or local governmental entity or its officers is required to notify the government defendant of his or her alleged injury, the circumstances surrounding the injury, the damage amount, and his or her intent to hold the named person(s) or entity liable. The plaintiff then must give that defendant 120 days to grant or disallow the claim before filing suit. Felder, who allegedly was beaten by police after his arrest, brought a § 1983 claim in state court without first filing a notice of claim. Our supreme court dismissed.

The United States Supreme Court reversed, holding that because the notice-of-claim statute conflicts with the remedial objectives of § 1983, and will frequently and predictably produce different outcomes in § 1983 litigation based on whether the claim is brought in state or federal court, it is pre-empted when the § 1983 action is brought in state court. See id. at 138.

The majority pointed out that the purpose of § 1983 is to provide compensation to those deprived of their federal rights by state actors, and that Wisconsin's notice-of-claim statute undermines this purpose in the following ways. First, it conditions the federal remedy to minimize governmental liability, which runs contrary to the purposes of § 1983. See id. at 141. Moreover, the statute is not a neutral and uniformly applied procedural requirement, but rather a substantive burden only imposed upon those seeking redress for injuries caused by the use or misuse of governmental authority. See id. Second, the notice provision discriminates against the federal right because it only provides a civil rights victim four months to appreciate that he or she has been deprived of a constitutional or statutory right, while a victim of an intentional tort has two years to recognize his or her injury. See id. at 141-142. Third, the notice provision operates in part as an exhaustion requirement that forces claimants to seek satisfaction in the first instance from the governmental defendant. See id. at 142.

In the majority's discussion of this third factor, it concluded that given the purpose of the federal civil rights legislation, there is no reason to believe that Congress intended to provide individuals with immediate access to the federal courts notwithstanding any state law to the contrary, yet still require them to seek redress in the first instance from the very state officials whose actions or inactions caused their injuries. See id. at 147. The Court said:

The dominant characteristic of a § 1983 action, of course, does not vary depending upon whether it is litigated in state or federal court, and States therefore may not adulterate or dilute the predominant feature of the federal right by imposing mandatory settlement periods, no matter how reasonable the administrative waiting period or the interests it is designed to serve may appear.

Id. at 148.

The Court again distinguished between § 1983 claims brought by prisoners and those brought by non-prisoners. While it recognized that Congress "work[ed] a change in the law" when it enacted the CRIPA, it refused to impose an exhaustion requirement in non-prisoner actions when there is no evidence that Congress intended one. Id. at 148-49.

C. Prison Litigation Reform Act

In 1996, Congress substantially amended CRIPA when it passed the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, § 803, 110 Stat. 1321 (1996), codified in 42 U.S.C. § 1997e. The most significant change is that the PLRA made the exhaustion provisions of § 1997e(a) mandatory, rather than directory. See Garrett v. Hawk, 127 F.3d 1263 (10th Cir. 1997); Morgan v. Arizona Dept. of Corrections,...