01-1197 State ex rel. Winters and Curtis v. Berge

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Richard Winters and Al Curtis, inmates at the Supermax Correctional Institution, appeal the circuit court order quashing the writ of certiorari and dismissing their joint petition for certiorari review of decisions of the prison disciplinary committee. The ground for the dismissal as to Winters was that he failed to exhaust his administrative remedies as required by Wis. Admin. Code sec. DOC 310.04; the ground as to Curtis is that he failed to file the petition within 45 days from the date of the decision appealed as required by Wis. Stat. sec. 893.735 (1999-2000). We conclude that the petition sufficiently alleges that Winters exhausted his administrative remedies and the record shows that he did. We conclude that we are not confined to the allegations of the petition when determining whether Curtis timely filed the petition, but may use the date of the final administrative decision that is undisputed in the record and undisputed by the parties.

We therefore reverse and remand for further proceedings.

Not recommended for publication in the official reports.

Dist IV, Dane County, Callaway, J., Vergeront, P.J.

Attorneys:

For Appellant: Richard D. Winters Jr., Boscobel; Al Curtis, Waupun

For Respondent: Stan Davis, Madison