COURT OF APPEALS

DECISION

DATED AND FILED

April 16, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2019AP779 Cir. Ct. No. 2019CV368

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

STATE OF WISCONSIN EX REL. PAUL BRIAN ASIK, JR.,

 PETITIONER-APPELLANT,

 V.

ELIZABETH TEGELS AND CATHY JESS,

 RESPONDENTS-RESPONDENTS.

APPEAL from orders of the circuit court for Dane County: 

STEPHEN E. EHLKE, Judge. Affirmed.

Before Blanchard, Graham, and Nashold, 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). 
No. 2019AP779

2

¶1 PER CURIAM. Paul Brian Asik, Jr., pro se, appeals a circuit court 

order that dismissed Asik’s petition for a writ of certiorari as untimely and the 

order denying his motion for reconsideration. Asik contends that his petition was 

timely under statutory and equitable tolling provisions. We conclude that Asik has 

not established that any tolling provisions apply in this case. We affirm.

¶2 Asik was issued a final prison disciplinary decision on 

November 29, 2018. It is undisputed that Asik placed his petition for certiorari 

review and supporting documents in the prison mailbox on January 16, 2019. 

Accordingly, Asik effectively filed his petition for writ of certiorari on January 16, 

2019. See State ex. rel. Shimkus v. Sondalle, 2000 WI App 238, ¶14, 239 Wis. 2d 

327, 620 N.W.2d 409. On February 14, 2019, the circuit court dismissed the 

petition as untimely. Asik moved for reconsideration, which the circuit court 

denied. 

¶3 Under WIS. STAT. § 893.735 (2017-18),

1

a petition for certiorari 

review of a prison disciplinary decision must be filed within forty-five days of the 

date of the decision. The deadline may not be extended because the circuit court 

lacks subject matter jurisdiction over a petition that is not timely filed. See State 

ex rel. Collins v. Cooke, 2000 WI App 101, ¶5, 235 Wis. 2d 63, 611 N.W.2d 774.

However, under certain circumstances, statutory or equitable tolling provisions 

may apply. Under § 893.735, for example, “the court may extend the period by as 

many days as the prisoner proves have elapsed between the decision or disposition 

and the prisoner’s actual notice of the decision or disposition.” Sec. 893.735(a). 

 

1

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted.
No. 2019AP779

3

Additionally, equitable tolling doctrines may apply if circumstances beyond the 

prisoner’s control prevent timely filing. See, e.g., State ex rel. Walker v.

McCaughtry, 2001 WI App 110, ¶¶13-16, 244 Wis. 2d 177, 629 N.W.2d 17. 

Under equitable tolling doctrines, “tolling begins when the documents over which 

prisoners have control have been mailed, and all of the documents over which 

prisoners have no control have been requested.” Id., ¶18. “By requiring prisoners 

to submit documents under their control within a designated period, the prisoner is 

treated equitably and the legislative intent is fulfilled.” Id. The Walker court 

characterized the petition for writ of certiorari as among the documents over which 

an inmate has control for purposes of equitable tolling. Id., ¶20. We 

independently review whether a petition for a writ of certiorari was timely filed 

based on tolling provisions. See id., ¶¶11, 18.

¶4 To repeat, here Asik’s final disciplinary decision was issued on 

November 29, 2018. Under the forty-five day deadline, Asik’s petition for a writ 

of certiorari was due on January 14, 2019. Asik argues, however, that he did not 

receive the DOC’s final decision until December 3, 2018. He asserts, therefore, 

that his forty-five days to file a petition for a writ of certiorari did not begin 

running until December 3, 2018, rather than the date on which the decision was 

issued, November 29, 2018.

¶5 As the State points out, however, Asik offered no proof that he 

received the decision on December 3, 2018. Asik does not argue that he provided 

any proof of the date he received the decision. Rather, Asik argues that this court 

should determine that it would not be reasonable for Asik to receive the decision 

the same date it was decided, when it had to be mailed to Asik at the institution. 

However, under WIS. STAT. § 893.735(2), the forty-five-day period begins to run 

on the date of the decision. The period may be extended if the prisoner proves the 
No. 2019AP779

4

number of days that have elapsed between the decision and the prisoner’s receipt 

of the decision. We need not determine here what proof would be sufficient to 

meet that burden. It is undisputed that Asik merely asserted to the circuit court 

that he received the decision on December 3, 2018. Argument is not evidence. 

State v. Eugenio, 210 Wis. 2d 347, 358, 565 N.W.2d 798 (Ct. App. 1997).

¶6 Next, Asik argues that he was transferred to a different institution on 

December 18, 2018, and did not receive his property, including legal paperwork, 

until December 28, 2018. Asik argues that his time to file a petition for a writ of 

certiorari should be equitably tolled for the ten days that the prison withheld his 

legal paperwork.

¶7 As the State contends, however, Asik has not established legal 

authority for applying the equitable tolling doctrines to this scenario. The 

equitable tolling rule is limited in scope. See State ex rel. Tyler v. Bett, 2002 WI 

App 234, ¶20, 257 Wis. 2d 606, 652 N.W.2d 800. “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.” Id. Thus, “inmates’ claims that they have 

been denied the constitutional right of access to the courts ... 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.” Id., ¶19. Simply put, the tolling 

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., ¶20. Here, the prison withholding Asik’s legal paperwork 

from December 18 to December 28, 2018, and returning that paperwork to Asik 
No. 2019AP779

5

well before the January 14, 2019 deadline for filing the petition, does not fall 

within the limited equitable tolling rule.2 

¶8 Next, Asik argues that he submitted his petition for a writ of 

certiorari to the prison Education Department for copying and requested 

notarization service on January 3, 2019, and did not receive the copies and 

notarization service until January 16, 2019. He argues that, as of January 3, 2019, 

he had submitted all documents under his control and requested all documents 

within the prison’s control. See Walker, 244 Wis. 2d 177, ¶18 (equitable “tolling 

begins when the documents over which prisoners have control have been mailed, 

and all of the documents over which prisoners have no control have been 

requested”). He argues that the tolling rule applies because he had no control over 

when he would receive copies or notarization service, citing State ex rel. Locklear 

v. Schwarz, 2001 WI App 74, ¶26, 242 Wis. 2d 327, 629 N.W.2d 30 (when filing 

depends on the delivery of documents from state officials, the limitation period is 

tolled between the time the prisoner requests the documents and the time the 

prisoner receives the documents).

¶9 The State asserts that Asik has not established that any equitable 

tolling doctrines apply to this scenario. Under Walker, the petition for a writ of 

certiorari is characterized as a document over which Asik had control. See 

Walker, 244 Wis. 2d 177, ¶20. In Locklear, the court discussed problems the 

prisoner encountered in attempting to photocopy materials but did not hold that 

 

2

 Asik argues that the circuit court found that his deadline was tolled by these ten days. 

However, as explained, we review whether tolling doctrines apply de novo.
No. 2019AP779

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those delays resulted in equitable tolling. See Locklear, 242 Wis. 2d 327, ¶¶33-

39. 

¶10 We need not decide whether the tolling rule could apply to this 

scenario because, even if it did, Asik did not submit sufficient evidence to the 

circuit court to prove the dates on which he submitted the petition for copies and 

requested notarization, or to prove that he was unable to receive the copies and 

notarization until January 16, 2019. Asik’s sole evidence to support tolling is a 

disbursement request for copies dated January 3, 2019. Nothing in his evidentiary 

submissions established when he requested notarization or that he was prevented 

from receiving the copies and notarization services until January 16, 2019.

¶11 Finally, Asik argues that his time for filing was tolled between 

December 12, 2018, and December 20, 2018, for the time between when Asik 

requested his three-strikes certification as required to obtain fee waiver and the 

date that the prison provided that document. However, Asik asserts that he 

received the certification prior to the date on which he requested or submitted the 

rest of his required material. Accordingly, the deadline was not tolled while Asik 

was awaiting his three-strikes certification. See Walker, 244 Wis. 2d 177, ¶18

(“tolling begins when the documents over which prisoners have control have been 

mailed, and all of the documents over which prisoners have no control have been 

requested”). We also reject Asik’s argument that he was denied due process and 

equal protection when his deadline to file his certiorari action was not tolled. 

Asik’s constitutional argument is insufficiently developed and lacks adequate 

factual support. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct.

App. 1992). We affirm.
No. 2019AP779

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By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5.