Jeffrey G. MacMillan v. Kevin A. Carr ( 2024 )

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.
January 11, 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 Nos.
2022AP1592 Cir. Ct. Nos. 2022CV1780
2022CV2143
2022AP1662
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
STATE OF WISCONSIN EX REL. JEFFREY G. MACMILLAN,
PETITIONER-APPELLANT,
V.
KEVIN CARR AND LARRY FUCHS,
RESPONDENTS-RESPONDENTS.
APPEAL from orders of the circuit court for Dane County:
RHONDA L. LANFORD and SUSAN M. CRAWFORD, Judges. Affirmed.
Before Blanchard, Graham, and Taylor, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
Nos. 2022AP1592
2022AP1662
¶1 PER CURIAM. Jeffrey MacMillan appeals the dismissal of two
different certiorari petitions that sought circuit court review of multiple
Department of Corrections decisions regarding MacMillan’s inmate complaints.
We consolidated these appeals based on MacMillan’s unopposed motion, which
represented that the petitions he filed in the circuit court were both dismissed for
the same reason, and that the same issues concerning equitable estoppel and
tolling would be argued in both appeals.
¶2 On appeal, MacMillan argues that the respective circuit courts
erroneously dismissed his petitions as untimely based on the filing deadlines in
WIS. STAT. § 893.735(2) (2021-22).1 He contends that he was entitled to equitable
estoppel or to tolling of the filing deadlines, primarily based on his allegation that
the law library access provided by the Department is constitutionally inadequate.
This argument fails because it has already been rejected by this court in State ex
rel. Tyler v. Bett, 2002 WI App 234, ¶19, 257 Wis. 2d 606, 652 N.W.2d 800.
MacMillan also alleges that the Department engaged in other obstructive conduct
that entitles him to equitable estoppel or tolling, but these arguments fail because
they are not supported by the record. Accordingly, we reject MacMillan’s
arguments and affirm the circuit court orders that dismissed the petitions as
untimely.
BACKGROUND
¶3 Although these appeals have been consolidated, the pertinent facts
turn on two different timelines, and we set forth those timelines separately.
1
All references to the Wisconsin Statutes are to the 2021-2022 version.
2
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Facts Pertaining to Appeal No. 2022AP1592
(Dane County Case No. 2022CV1780)
¶4 MacMillan’s first case, which was designated as Dane County case
No. 2022CV1780 and assigned to Judge Rhonda Lanford, seeks certiorari review
of four final Department decisions that dismissed four of MacMillan’s inmate
complaints on various topics.2 The most recent of these Department decisions was
issued on May 18, 2022. Therefore, under WIS. STAT. § 893.735(2), MacMillan’s
deadline to petition for certiorari review was no later than July 5, 2022, unless he
demonstrated that that deadline should be tolled.3 See § 893.735(2) (establishing a
45-day deadline); State ex rel. Walker v. McCaughtry, 2001 WI App 110,
¶¶13-16, 244 Wis. 2d 177, 629 N.W.2d 17 (acknowledging that the statutory
deadline may be tolled under certain circumstances in which incarcerated persons
encounter delays in filing that are beyond their control).
¶5 According to the affidavit and other supporting documents attached
to MacMillan’s petition, MacMillan attempted to file a version of his petition,
which would have challenged some of these Department decisions, on two earlier
occasions. However, the Dane County Clerk of Courts (hereinafter, the clerk’s
2
The four underlying inmate complaints pertained to MacMillan’s treatment as an
inmate at Columbia Correctional Institution. More specifically, one addressed an offsite medical
appointment that was “foiled” by the Department; another addressed scheduled zoom calls with
MacMillan’s lawyer that were “obstructed” by the Department; and two complaints related to the
procedure used by the inmate complaint review system for handling inmate complaints, including
alleged obstruction of complaints and alleged staff misconduct.
3
Indeed, a July 5, 2022 petition would have been timely only as to the last-decided
inmate complaint, and would not have been timely as to MacMillan’s other complaints.
However, we need not address these details because MacMillan does not dispute that his petition
was filed more than 45 days after the Department’s final decisions on all of his inmate
complaints.
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office) did not accept these earlier versions for filing. MacMillan’s third attempt
to file a petition was accepted for filing by the clerk’s office on July 19, 2022.
¶6 The following averments are taken from the affidavit MacMillan
filed with his petition, which identified the reasons for his delay in filing.
¶7 MacMillan initially attempted to file his petition by mail on or
around April 21, 2022. Shortly thereafter, the Department notified MacMillan that
he was being transferred to Green Bay Correctional Institution (GBCI), and the
transfer was complete by the end of April 2022. MacMillan avers that the transfer
to GBCI was “irregular,” “unplanned,” “retaliatory,” and “disruptive to [his] legal
efforts.” MacMillan further avers that, once he was at GBCI, the Department
“refused to allow access to the law library as a general rule, claiming that an active
court deadline is required to obtain access.”
¶8 MacMillan further avers that he did not receive any
acknowledgement from the clerk’s office about his initial attempt to file the
petition. Therefore, he sent his materials a second time, and they were received
(but not filed) by the clerk’s office on May 20, 2022.
¶9 MacMillan further avers that his mother, who he refers to as his
“legal agent,” contacted the clerk’s office on June 4, 2022, to inquire about the
status of the petition. MacMillan’s mother was advised that the clerk had received
both mailings, but that a staff attorney working in the clerk’s office had “refused”
to file them. The clerk’s office declined to provide additional information to
MacMillan’s mother and directed her to have MacMillan contact the clerk’s office
in writing.
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¶10 MacMillan further avers that he prepared his petition and supporting
documents a third time. As noted, these materials were finally accepted for filing
by the clerk’s office on July 19, 2022.4
¶11 In the petition itself, MacMillan requests “equitable estoppel and
equitable tolling” of the 45-day deadline due to obstruction by the Department.
He contends that the Department went to “extensive efforts to thwart the filing of
this petition,” including by transferring him to GBCI after he first attempted to file
the petition and by refusing to allow adequate access to the law library at GBCI.
Regarding the library access issue, MacMillan cites cases including Bounds v.
Smith, 430 U.S. 817 (1977), clarified by Lewis v. Casey, 518 U.S. 343 (1996)
(addressing the scope of the right set forth in Bounds) and he argues that the
library access provided by the Department is “insubstantial and grossly
inadequate, by design.” He asserts that he filed a “separate [inmate] complaint …
regarding the lack of sufficient law library access,” and that his inmate complaint
regarding library access “should be requested as part of the court’s certiorari
review” in this case.5 Finally, as discussed in greater detail below, he alleges that
4
MacMillan’s affidavit does not identify the date that he placed the petition and
supporting documents in the institutional mailbox.
5
This appears to be a reference to a separate inmate complaint (GBCI-2022-7880) which
was, apparently, the subject of a separate petition for certiorari review (Dane County case
No. 2022CV2457) and is the subject of a separate pending appeal (appeal No. 2023AP1212).
5
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the Department obstructed his efforts by delaying the processing and mailing of
his second attempt at filing.6
¶12 Consistent with WIS. STAT. § 802.05(4)(b), the circuit court entered
an order that dismissed the petition without requiring a response from the
Department. The reason given for the sua sponte dismissal was MacMillan’s
failure to file the petition within the 45-day statute of limitations in WIS. STAT.
§ 893.735(2). MacMillan appeals.
Facts Pertaining to Appeal No. 2022AP1662
(Dane County Case No. 2022CV2143)
¶13 MacMillan’s second case, which was designated Dane County case
No. 2022CV2143 and assigned to Judge Susan Crawford, seeks review of several
Department decisions that dismissed or otherwise declined to address MacMillan’s
inmate complaints on various topics.7 The latest of the Department decisions was
issued on July 5, 2022. Therefore, under WIS. STAT. § 893.735(2), MacMillan
6
In the petition that MacMillan filed with the circuit court, he also argued that he was
entitled to estoppel and tolling of the filing deadline based on interference by the clerk’s office.
Among other things, he pointed to the clerk’s office’s failure to communicate with him about its
reasons for declining to file the petition, its “refus[al] to acknowledge [his mother as his] legal
agent, despite widely accepted use of agents for legal filings, especially in inmate cases,” and the
role of a clerk’s office staff attorney in screening inmate filings and rejecting them based on
errors that could be remedied with amended pleadings. MacMillan does not renew this argument
on appeal, and therefore, we discuss it no further.
7
These underlying inmate complaints pertained to MacMillan’s treatment as an inmate
at Columbia Correctional Institution, his transfer to GBCI, and his treatment as an inmate at that
institution. More specifically, one inmate complaint addressed his requests for items that the
special needs committee denied as medically unnecessary; another pertained to MacMillan’s
inmate work assignment; another pertained to his transfer to GBCI; another addressed alleged
damage to MacMillan’s typewriter by Department staff; and another pertained to medical issues
including a medication dosage change. Along with the final Department decisions on these
complaints, MacMillan also seeks review of the Department’s refusal to consider other inmate
complaints pertaining to medical treatment.
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should have sought certiorari review by the circuit court no later than August 19,
2022, unless that deadline was tolled.8 See Walker, 244 Wis. 2d 177, ¶¶13-16.
¶14 MacMillan’s petition was stamped as “filed” in the circuit court on
August 25, 2022. MacMillan did not include any affidavit along with his petition
that identified the date that he placed the petition in the institution mailbox, or that
accounted for his delay in doing so.
¶15 However, in the petition itself, MacMillan argues that he is entitled
to “equitable estoppel and equitable tolling” of the 45-day deadline based on the
Department’s “interfer[ence] with the filing of this petition.” He again argues that
the Department interfered with his filing by transferring him to GBCI, and by
“refus[ing] to allow law library access at all, unless a court deadline can be
shown.” He again cites federal case law and argues that the library access
afforded by the Department is “insubstantial and grossly inadequate, by design.”
And again, he asserts that his separate inmate complaint on the library access issue
“should be requested” and considered in this case. Finally, MacMillan also alleges
that he was placed on lockdown due to a positive COVID test on July 22, 2022,
which entirely blocked his access to the library for approximately two weeks.
¶16 Again, consistent with WIS. STAT. § 802.05(4)(b), the circuit court
entered an order that dismissed the petition without requiring a response from the
Department. And again, the reason given for the sua sponte dismissal was
8
An August 19, 2022 petition would have been timely only as to the last-decided inmate
complaint, but we do not address these details because MacMillan’s petition was filed more than
45 days after the Department’s final decision on all of the complaints.
7
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MacMillan’s failure to file the petition within the 45-day limitations period set
forth in WIS. STAT. § 893.735(2).
¶17 MacMillan filed a motion for reconsideration. In his motion,
MacMillan argued that, despite his request for equitable tolling, the circuit court
“failed to conduct the appropriate hearing” or give “any apparent consideration at
all [to] the fact that the [Department was] responsible for any lapse relating to the
filing deadlines.” The motion focused on the limited access to the law library at
GBCI, which MacMillan characterized as “well below established and accepted
guidelines.” He also argued in a summary fashion that the “pattern of interference
and harassment” that is the subject of his petition “is at a minimum something that
should be considered on the merits by the court.”
¶18 The circuit court issued an order denying the motion. In the order,
the court explained that, although MacMillan had requested tolling of the statutory
deadline based on law library access, this same argument has been rejected in a
published decision by the Wisconsin Court of Appeals. See Tyler, 257 Wis. 2d
606, ¶19. Accordingly, the court explained, it could not “equitably toll the statute
of limitations regardless of whether, or to what extent, any prison official limited
MacMillan’s access to the prison law library.” MacMillan appeals.
DISCUSSION
¶19 The issue in these appeals is whether the respective circuit courts
properly dismissed MacMillan’s two certiorari petitions as untimely. We review
this issue de novo. State ex rel. Johnson v. Litscher, 2001 WI App 47, ¶4, 241
Wis. 2d 407, 625 N.W.2d 887.
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¶20 As noted, under WIS. STAT. § 893.735(2), an inmate’s petition for
certiorari review of the Department’s decision on an inmate complaint must be
filed within 45 days of the date of the Department’s final decision. Strict
adherence to the statutory limitations period is required, and an inmate’s failure to
file a certiorari petition within the limitations period results in dismissal. State ex
rel. Collins v. Cooke, 2000 WI App 101, ¶¶5, 7, 235 Wis. 2d 63, 611 N.W.2d 774.
However, Wisconsin courts have determined that the statutory deadline may be
tolled under certain circumstances, in recognition of the reality that incarcerated
persons may encounter certain delays in filing that are beyond their control.
Walker, 244 Wis. 2d 177, ¶¶13-16. This doctrine is referred to as “equitable
tolling,” and we discuss it at greater length below.
¶21 Here, MacMillan does not dispute that his petitions were not filed
within 45 days of the final Department decisions he wished to contest. Instead, in
his appellate briefing, MacMillan argues that “equitable estoppel should have been
applied, due to [the Department’s] affirmative conduct” in allegedly hindering his
ability to file his petitions within the statutory deadline. More specifically,
MacMillan contends that he was hindered by the Department’s law library access
policies, its alleged interference with his legal mail, and other unspecified
“retaliatory conduct.” According to MacMillan, application of equitable estoppel
would have “tolled” the filing deadlines for both petitions, resulting in a
determination that his petitions were timely filed. In addition, MacMillan argues
that the respective circuit courts should not have dismissed his petitions sua sponte
without holding a hearing on his allegations about the reasons for his delay in
filing the petitions.
¶22 Before addressing these arguments, we briefly comment on two
distinct concepts, tolling and estoppel, which MacMillan conflates in his briefing.
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Tolling and Estoppel
¶23 As applied here, “equitable tolling” refers to the manner in which a
statutory filing deadline is calculated. See, e.g., State ex rel. Griffin v. Smith,
2004 WI 36, ¶35-36, 270 Wis. 2d 235, 677 N.W.2d 259. When a deadline is
tolled, it is pushed back by a certain number of days to account for certain delays
that were beyond the filing party’s control. Id., ¶37; Walker, 244 Wis. 2d 177,
¶¶13-16. Equitable tolling is often used when calculating an inmate’s deadline for
filing a certiorari petition.9
¶24 The doctrine of estoppel, by contrast, can be directed at a defendant
(or a respondent) in a legal action. When applicable, the doctrine of estoppel
prevents that party from asserting a legal defense, including a statute of limitations
defense, at all.10 MacMillan does not identify any case in which a court has
9
See State ex rel. Steldt v. McCaughtry, 2000 WI App 176, ¶¶17-18, 238 Wis. 2d 393,
617 N.W.2d 201 (after an inmate claiming to be indigent submits all documents needed to make
the indigency determination to the court, “the time taken by the court to determine whether the
prisoner must pay any fees before proceeding is out of the prisoner’s control,” and the deadline
for commencing the action “is tolled”); State ex rel. Shimkus v. Sondalle, 2000 WI App 238,
¶14, 239 Wis. 2d 327, 620 N.W.2d 409 (establishing the “mailbox rule,” which provides that,
“when a prison inmate places a certiorari petition in the institution’s mailbox for forwarding to
the circuit court, the forty-five-day time limit … is tolled”); State ex rel. Locklear v. Schwarz,
2001 WI App 74, ¶¶22-28, 242 Wis. 2d 327, 629 N.W.2d 30 (tolling applies when an inmate has
timely requested a three-strikes certification from the state department of justice and awaits its
receipt); State ex rel. Walker v. McCaughtry, 2001 WI App 110, ¶16, 244 Wis. 2d 177, 629
N.W.2d 17 (tolling applies when an inmate has timely requested a copy of the inmate’s trust
account statement from the Department); State ex rel. Nichols v. Litscher, 2001 WI 119, ¶¶8, 24-
26, 247 Wis. 2d 1013, 635 N.W.2d 292 (applying similar tolling rules for filing petitions for
review with our supreme court).
10
See State ex rel Susedik v. Knutson, 52 Wis. 2d 593, 594-97, 191 N.W.2d 23 (1971)
(child’s father was estopped from asserting the statute of limitations as a defense in a paternity
action based on the father’s representations and acts following the child’s birth, which induced
mother to refrain from filing the paternity action within the limitations period); Wosinski v.
Advance Cast Stone Co., 2017 WI App 51, ¶¶40-44, 377 Wis. 2d 596, 901 N.W.2d 797(contractor was equitably estopped from asserting the statute of limitations as a defense in a
negligence action, based on facts showing that the company concealed and misrepresented facts
(continued)
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applied this doctrine to prevent reliance on the limitations period in WIS. STAT.
§ 893.735(2). Nor does he address the elements of equitable estoppel, much less
whether and how those elements are satisfied based on the facts he alleges in his
petition.
¶25 Accordingly, we do not further discuss the doctrine of equitable
estoppel. State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App.
1992) (an appellate court need not address undeveloped arguments that are not
supported by legal authority). We instead focus our remaining discussion on the
equitable tolling doctrine, and whether MacMillan has shown that his filing
deadline should be tolled on the basis of the Department’s alleged inference with
his law library access and institutional mail.
Library Access
¶26 MacMillan’s primary argument in favor of equitable tolling pertains
to law library access. He contends that the Department’s policies regarding library
access violate his constitutional right to meaningful library access, and that his
filing deadlines should be tolled as a result.
¶27 This same argument was squarely addressed and rejected in Tyler,
257 Wis. 2d 606. In Tyler, as in this case, an inmate sought certiorari review of a
about the construction and installation of a portion of a parking structure, which eventually
caused the structure to collapse); Ovando v. City of Los Angeles, 92 F. Supp. 2d 1011, 1024
(C.D. Cal. 2011) (city police department estopped from relying on the statute of limitations on
account of its officers’ false testimony about a fatal police shooting, which induced the victim’s
relatives to refrain from filing an action against the city within the limitations period); see also
DOR v. Moebius Printing Co., 89 Wis. 2d 610, 632-35, 279 N.W.2d 213 (1979) (state
department of revenue estopped from collecting a tax when the taxpayer relied on department’s
representation that it would not collect the tax).
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Department decision, but his petition was not accepted for filing until after the
statutory deadline had already passed. Id., ¶¶1, 5-6. Tyler argued that his filing
deadline should have been extended under the “mailbox rule” set forth in State ex
rel. Shimkus v. Sondalle, 2000 WI App 238, 239 Wis. 2d 327, 620 N.W.2d 409,
but we rejected that argument. Tyler, 257 Wis. 2d 606, ¶¶1-2, 9-16 (addressing
Tyler’s arguments concerning the mailbox rule, as defined above). Additionally,
and importantly here, Tyler also argued that he was entitled to “special
consideration in meeting the filing deadline” due to inadequate legal resources,
including library access, in prison. Id., ¶¶1, 17-20. We specifically rejected
Tyler’s assertion that an alleged deficiency in library access “provides grounds for
tolling of the statutory deadline.” Id., ¶2.
¶28 MacMillan argues that this holding from Tyler is inapplicable here
because the Tyler court’s analysis was limited to the mailbox rule. We disagree.
It is true that the Tyler court briefly referred to the “mailbox/tolling rule” when
addressing Tyler’s argument about library access. See id., ¶20. Yet the court also
spoke in much broader terms about tolling, and it specifically rejected Tyler’s
assertion that he was entitled to “special consideration” in the form of “tolling”
based on his allegation “that he did not have access to adequate legal resources”:
Finally, we briefly address Tyler’s contention that
he is entitled to “special consideration in meeting the filing
deadline because he was faced with obstacles beyond his
control which interfered with the processing of his
petition.” He essentially claims that he should be entitled
to have the statute tolled because he did not have access to
adequate legal resources and assistance at the institution
where he is incarcerated. We do not agree that the tolling
rule of Shimkus I and its progeny may be employed as an
ad hoc remedy for alleged inadequacies in prison legal
resources.
We acknowledge that limitations on the access to
legal resources and assistance undoubtedly impact the
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ability of pro se prisoners to properly file legal actions. We
also acknowledge that “the fundamental constitutional right
of access to the courts requires prison authorities to assist
inmates in the preparation and filing of meaningful legal
papers by providing prisoners with adequate law libraries
or adequate assistance from persons trained in the law.” To
that end, WIS. ADMIN. CODE § DOC 309.155(3) provides
that “[e]ach institution, except correctional centers and the
Wisconsin [R]esource [C]enter, shall maintain a law library
and make legal materials available to inmates at reasonable
times and for reasonable periods.” Moreover, the
Department of Corrections “shall make reasonable efforts
to ensure that adequate legal services are available to
indigent inmates.” Section DOC 309.155(4).
We conclude, however, that inmates’ claims that
they have been denied the constitutional right of access to
the courts, or that the department is not meeting its
obligations under … WIS. ADMIN. CODE § DOC 309.155
are appropriately addressed through the Inmate Complaint
Review System. The complaint review system permits
prisoners to challenge specific violations of their rights and
inadequacies in prison conditions or services.…
By contrast, the judicially-created mailbox/tolling
rule is far more limited in scope. The rule addresses only
the disability inmates are under in meeting statutory filing
deadlines because they must rely on the actions of others,
who are beyond their control, in submitting necessary
documents to the courts. We conclude that the continued
vitality of the rule depends on its being confined to serving
its intended purpose. The efficacy of the rule depends on
the ability of courts to easily resolve factual questions
regarding who did what and when in relation to the
mailing, receipt and processing of documents intended for
court filing. The rule was not intended to spawn, nor can it
support, open-ended inquiries into the adequacy of prison
legal resources, or discretionary judgments as to whether
certain facts and circumstances warrant relief from
statutory deadlines while others do not.
Id., ¶¶17-20 (emphasis added, some internal citations omitted). Based on this
broad language, we conclude that Tyler specifically rejected the tolling argument
that MacMillan advances in this appeal.
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¶29 MacMillan may be suggesting that reliance on Tyler in his cases is
misplaced because, consistent with the direction in Tyler, he sought review of the
Department’s library policies through the inmate complaint review system and on
certiorari review. However, those inmate complaints and certiorari petitions are
not properly part of the record in this case. See WIS. STAT. § 227.57(1); see also
Roy v. St. Lukes Med. Ctr., 2007 WI App 218, ¶10 n.1, 305 Wis. 2d 658, 741
N.W.2d 256 (an appellate court is limited to matters in the record and will not
consider any materials in an appendix that are not in the record). The fact that
MacMillan also sought review of the Department’s library policy through the
proper channels does not mean that, contrary to Tyler’s unequivocal holding, he
could be entitled to tolling based on an alleged lack of library access.
¶30 Finally, MacMillan also argues that Tyler’s proposed remedy of
addressing library access issues through the inmate complaint review system is
“non-functional as a matter of law.” He explains that the complaint review system
is limited to addressing individual grievances, WIS. ADMIN. CODE § DOC
§ 310.10(5); that judicial review is limited to the agency record, WIS. STAT.
§ 227.57(1); and that the “practical result” is that, to the extent that the Department
succeeds in preventing an inmate from timely petitioning for certiorari review and
the inmate responds by challenging the lack of library access through the
complaint review system, “the original claims have been lost forever.” Regardless
of the merits of this argument, we are bound by the legal conclusions in Tyler. See
Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997).
Mail Interference
¶31 MacMillan also makes a secondary argument in favor of equitable
tolling, which pertains to the Department’s alleged interference with his
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institutional mail. To this end, MacMillan appears to advance one argument that
is limited to factual assertions he made in his petition in 22CV1780, and a second
much broader argument that is not supported by any facts in the record.
¶32 As for the more limited argument MacMillan appears to be making,
his petition in 22CV1780 alleged that, during his second attempt at filing the
petition, he sent the documents and a completed disbursement request for the
filing fee to the institution mailroom on May 7, 2022, but the mailing was delayed
by the Department for nine days before finally being mailed on May 16, 2022, and
it was finally received but not filed by the circuit court on May 20, 2022. Even if
accepted as true, these facts do not provide a basis for reversing the circuit court’s
dismissal of his petition in 22CV1780 as untimely. Among other things, tolling of
MacMillan’s deadline for the time between May 7 and May 20 would not have
resulted in a timely filing.11
¶33 As for the broader argument in favor of equitable tolling, MacMillan
accuses the Department of “interfering [with] and intercepting legal mail directed
to [MacMillan] from the outside … with the specific intent of limiting litigation.”
As support, he cites to documents that he included in the appendix to his appellate
briefing, but that are not part of the circuit court record, much less the pertinent
agency record. Specifically, these documents pertain to materials that MacMillan
filed in other inmate complaints, and Department decisions that are the subject of
other certiorari petitions before other branches of the Dane County Circuit Court.
11
At best, even assuming these facts were properly set forth in an affidavit and could be
the basis for tolling the deadline, his deadline would be extended by only 13 days. Here, the
filing was at least 14 days late as to the last-issued Department decision, and even later as to the
Department’s decisions on his other inmate complaints.
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We will not consider these documents on appeal, see Roy, 305 Wis. 2d 658,
¶10 n.1; WIS. STAT. § 227.57(1), and we therefore reject MacMillan’s argument
about Department interference with his mail because it is not supported by the
record.12
Dismissal Without a Hearing
¶34 Finally, MacMillan argues that the respective circuit courts erred
when they dismissed his petitions sua sponte, without holding a hearing on his
arguments about equitable estoppel and tolling. We conclude that dismissal was
appropriate because, for the reasons explained above, the petitions were filed more
than 45 days after the Department’s final decision, and they did not identify any
factual issues that required a response or fact finding on the subject of equitable
estoppel or tolling. See State ex rel. Schatz v. McCaughtry, 2003 WI 80, ¶47, 263
Wis. 2d 83, 664 N.W.2d 596 (the sua sponte dismissal of an inmate’s certiorari
petition pursuant to what is now WIS. STAT. § 802.05(4)(b)4. does not violate due
process because the statute provides an inmate with constructive notice of the
possibility of a sua sponte dismissal and there are adequate procedural safeguards
against erroneous dismissal under the statute).
By the Court.—Orders affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
12
MacMillan may be making additional arguments about “various retaliatory conduct”
in his reply brief, but he does not direct us to record support for these arguments.
16