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Morris v. Dickman

United States District Court, W.D. Wisconsin

September 27, 2017

TAMMY DICKMAN, et al. Defendants.

          OPINION & ORDER


         Pro se plaintiff Michael Morris has filed multiple versions of his complaint in this lawsuit related to his claims that various defendants violated his constitutional right to access the courts. As Morris's first amended complaint encapsulated the clearest version of the facts comprising his claims, the court construed it as the operative pleading for purposes of screening. Accordingly, on January 9, 2017, the court granted Morris leave to proceed on an access to courts claim against defendants Tammy Dickman and Diane Fremgen and dismissed defendant David Rice.

         In response, Morris filed a motion on February 1, 2017, seeking dismissal of all of his amended complaints and requesting to file yet another amended complaint. (Dkt. #44.) The next day, defendants Dickman and Fremgen filed a joint motion to dismiss all versions of plaintiff's complaint (dkt. #46). Since then, Morris has filed opposition materials, as well as numerous other motions, which the court has reviewed to learn more about the contours of his claims. Having considered all of the parties' filings, the court will now grant defendants' motion to dismiss, deny Morris's motions and direct entry of final judgment.


         During all relevant times, Morris was incarcerated at the Wisconsin Secure Program Facility (“WSPF”). The defendants are Tammy Dickman, an employee in WSPF's business office, and Diane Fremgen, an employee with the Clerk of Court for the Wisconsin Court of Appeals.

         In June of 1999, Morris was convicted of two counts of first-degree sexual assault of a child and two counts of incest with a child. State of Wisconsin v. Morris, Case No. 1998CF0027 (Waushara Cty. Cir. Ct.). The Wisconsin Court of Appeals affirmed these convictions in January of 2002. State of Wisconsin v. Morris, App. No. 2000AP1530.

         On November 18, 2013, Morris filed a petition for a writ of mandamus. Morris v. Dutcher, Case No. 2013AP2544-W. Even though Waushara County Circuit Court Judge Guy Dutcher was named as the respondent, it was apparent that Morris intended to proceed against Fremgen and Wisconsin Chief Deputy Clerk Christopher Paulson. In his petition, Morris claimed that Fremgen and other individuals excluded motions, documents and letters from his 2000 state court criminal file. He also claimed that Paulsen was unable to find certain letters from Morris's trial attorney, which Morris believes were wrongfully removed. Morris further asserted that Fremgen and others would not permit him to file documents in his case. Morris next claimed that he submitted documents in 2009 in support of his appeal in another matter, and Paulson added them to his file, but then told him that the court would not take action with respect to it because his petition had been denied more than a year before. Morris argues that the absence of these documents denied him due process during his criminal proceeding, in particular because the excluded filings provided proof that the state's witnesses lied.

         After filing the petition, Morris received a notice directing him to either file his indigency application or pay the $195.00 filing fee within ten days. Morris alleges that he attempted to send his indigency application on November 27, 2013, but defendant Dickman, then working in WSPF's business office, did not send it out at that time. As of that day, however, Morris was still incarcerated at the New Lisbon Correctional Institution; he was not incarcerated at WSPF until December 20, 2013. See Regardless, there is no dispute that Morris's indigency application was sent on December 5, 2013. Morris further claims that he sent a letter to appellate clerk Fremgen, explaining the delay and asking that it be excused. Morris then followed up on his petition for supervisory writ by filing a 50-page motion for discovery and 200 pages of exhibits, in which he purported to challenge his underlying criminal convictions and requested discovery and an in camera inspection.

         Because Morris received no response to his petition, he filed a second petition on April 22, 2014. Morris v. Fremgen & Paulsen, Case No. 2014AP0892-W. He also filed a motion for miscellaneous relief on April 29. The court treated this latter filing as a motion for voluntary dismissal, and closed the appeal on June 13, 2014, and Morris took no further action with respect to this petition.

         On April 30, 2014, the Wisconsin Court of Appeals also denied Morris's petition for writ of mandamus. Morris v. Dutcher, Case No. 2013AP2544, slip op. In doing so, the court explained to Morris that mandamus is an extraordinary legal remedy only available in limited circumstances where a public official “has clearly violated a plain legal duty and the party seeking relief has acted promptly and faces grave hardship or irreparable harm for which there is no other adequate remedy at law.” Id. at 2. The court of appeals noted that Morris's submissions were unclear, referencing both his appeal and other petitions, and that he failed to show entitlement to relief. The court further noted that Morris conceded failing to exhaust his administrative remedies, indicating that he had an adequate remedy at law. Id.

         In response to the April 30 order in Case No. 2013AP2544, Morris filed several, additional motions in May of 2014, seeking clarification on and relief from the Wisconsin Supreme Court on the court of appeals decision in Case No. 2013AP2544. Among other things, Morris asked that the court of appeals be compelled to determine what happened to the documents that were the subject of his rejected petition. In his view, Fremgen specifically mislabeled one of his filings as a “Petition for Review.”

         On June 10 2014, Morris requested dismissal of his other petitions and submitted yet another petition, which was entered in Case No. 2013AP2544 as another filing in that matter. Later that same month, Morris wrote Fremgen a few times to ask if she received this second writ and petition. He followed up by writing to the court of appeals to request his money back for the partial filing fee on his later-dismissed petition, but that request was denied. On August 4, 2014, the Wisconsin Supreme Court denied all of Morris's pending motions in Case No. 2013AP2544 as well. On August 8, 2014, Morris then filed an internal complaint about defendant Dickman, claiming again that she failed to mail his indigency paperwork back in December of 2014.

         Finally, on September 3, 2014, Morris wrote a letter to Justice Shirley Abrahamson of the Wisconsin Supreme Court. Fremgen responded to this letter on September 12, 2014. (Dkt. #47-2.) In it, Fremgen acknowledged Morris's complaint that the court was not receiving his filings, but assured him that the court of appeals reviewed all of his filings in issuing the April 30, 2014, order. She further informed him that any subsequent filings had been construed as a petition for review and were submitted to the Wisconsin ...

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