801.02.Commencement of action.

Ch. 801: Commencement of Action and Venue · Last amended 2015 · Last verified July 15, 2026

In one sentenceSection 801.02 explains exactly when a Wisconsin lawsuit legally begins — by filing a summons and complaint and then serving the defendant within 90 days — and sets special filing conditions for prisoners suing over prison or jail conditions.

Full Text of Section 801.02

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(1) A civil action in which a personal judgment is sought is commenced as to any defendant when a summons and a complaint naming the person as defendant are filed with the court, provided service of an authenticated copy of the summons and of the complaint is made upon the defendant under this chapter within 90 days after filing.

(2) A civil action in which only an in rem or quasi in rem judgment is sought is commenced as to any defendant when a summons and a complaint are filed with the court, provided service of an authenticated copy of the summons and of either the complaint or a notice of object of action under s. 801.12 is made upon the defendant under this chapter within 90 days after filing.

(3) The original summons and complaint shall be filed together. The authenticated copies shall be served together except:

(a) In actions in which a personal judgment is sought, if the summons is served by publication, only the summons need be published, but a copy of the complaint shall be mailed with a copy of the summons as required by s. 801.11, and;

(b) In actions in which only an in rem or quasi in rem judgment is sought, the summons may be accompanied by a notice of object of action pursuant to s. 801.12 in lieu of a copy of the complaint and, when the summons is served by publication, only the summons need be published, but a copy of the complaint or notice of object of action shall be mailed with the copy of the summons as required by s. 801.12.

(4) No service shall be made under sub. (3) until the action has been commenced in accordance with sub. (1) or (2).

(5) An action seeking a remedy available by certiorari, quo warranto, habeas corpus, mandamus or prohibition may be commenced under sub. (1), by service of an appropriate original writ on the defendant named in the writ if a copy of the writ is filed forthwith, or by filing a complaint demanding and specifying the remedy, if service of an authenticated copy of the complaint and of an order signed by the judge of the court in which the complaint is filed is made upon the defendant under this chapter within the time period specified in the order. The order may specify a time period shorter than that allowed by s. 802.06 for filing an answer or other responsive pleading.

(6) Fees payable upon commencement of a civil action shall be paid to the clerk at the time of filing.

(7)

(a) In this subsection:

1. “Correctional institution” means any state or local facility that incarcerates or detains any adult accused of, charged with, convicted of, or sentenced for any crime. A correctional institution includes a Type 1 prison, as defined in s. 301.01 (5), a Type 2 prison, as defined in s. 301.01 (6), a county jail and a house of correction.

2. “Prisoner” means any person who is incarcerated, imprisoned or otherwise detained in a correctional institution or who is arrested or otherwise detained by a law enforcement officer. “Prisoner” does not include any of the following:

a. A person committed under ch. 980.

b. A person bringing an action seeking relief from a judgment terminating parental rights.

c. A person bringing an action seeking relief from a judgment of conviction or a sentence of a court, including an action for an extraordinary writ or a supervisory writ seeking relief from a judgment of conviction or a sentence of a court or an action under s. 809.30, 809.40, 973.19, 974.06 or 974.07.

d. A person bringing an action under s. 809.50 seeking relief from an order or judgment not appealable as of right that was entered in a proceeding under ch. 980 or in a case specified under s. 809.30 or 809.40.

e. A person who is not serving a sentence for the conviction of a crime but who is detained, admitted or committed under ch. 51 or 55 or s. 971.14 (2) or (5).

3. “Prison or jail conditions” means any matter related to the conditions of confinement or to the effects of actions by government officers, employees or agents on the lives of prisoners.

(b) No prisoner may commence a civil action or special proceeding, including a petition for a common law writ of certiorari, with respect to the prison or jail conditions in the facility in which he or she is or has been incarcerated, imprisoned or detained until the person has exhausted all available administrative remedies that the department of corrections has promulgated by rule or, in the case of prisoners not in the custody of the department of corrections, that the sheriff, superintendent or other keeper of a jail or house of correction has reduced to writing and provided reasonable notice of to the prisoners.

(bm) A prisoner commencing an action or special proceeding shall first comply with the provisions of s. 893.80 or 893.82 unless one of the following applies:

1. The prisoner is filing a petition for a common law writ of certiorari.

2. The prisoner is commencing an action seeking injunctive relief and the court finds that there is a substantial risk to the prisoner’s health or safety.

(c) At the time of filing the initial pleading to commence an action or special proceeding, including a petition for a common law writ of certiorari, related to prison or jail conditions, a prisoner shall include, as part of the initial pleading, documentation showing that he or she has exhausted all available administrative remedies. The documentation shall include copies of all of the written materials that he or she provided to the administrative agency as part of the administrative proceeding and all of the written materials the administrative agency provided to him or her related to that administrative proceeding. The documentation shall also include all written materials included as part of any administrative appeal. The court shall deny a prisoner’s request to proceed without the prepayment of fees and costs under s. 814.29 (1m) if the prisoner fails to comply with this paragraph or if the prisoner has failed to exhaust all available administrative remedies.

(d) If the prisoner seeks leave to proceed without giving security for costs or without the payment of any service or fee under s. 814.29, the court shall dismiss any action or special proceeding, including a petition for a common law writ of certiorari, commenced by any prisoner if that prisoner has, on 3 or more prior occasions, while he or she was incarcerated, imprisoned, confined or detained in a jail or prison, brought an appeal, writ of error, action or special proceeding, including a petition for a common law writ of certiorari, that was dismissed by a state or federal court for any of the reasons listed in s. 802.05 (4) (b) 1. to 4. The court may permit a prisoner to commence the action or special proceeding, notwithstanding this paragraph, if the court determines that the prisoner is in imminent danger of serious physical injury.

End

Official Notes

Judicial Council Note, 1981: Sub. (1) is amended to allow an action seeking an extraordinary remedy to be commenced in the same manner as any other civil action. Sub. (5) allows the additional option of using an order to shorten the time for filing a response to the complaint in lieu of a summons. This option is for the emergency situation when the case may be moot before a response would be filed. The order serves the same purpose as the alternative writ and the order to show cause used to initiate the action under writ procedures. In all other matters of procedure, the rules of civil procedure govern to the extent applicable. Sub. (5) applies only to procedure in the circuit court. In seeking an extraordinary remedy in the supreme court or court of appeals, s. 809.51, stats., should be followed. [Bill 613-A]

Plain-English Summary

Section 801.02 answers a question every plaintiff needs answered before doing anything else: when does a case officially start? For a lawsuit seeking a personal judgment, the action is commenced against a given defendant once the summons and complaint naming that defendant are filed with the court — but only if an authenticated copy is then served on the defendant within 90 days of filing. An in rem or quasi in rem action (one aimed at a status, property, or thing rather than a person’s pocketbook) works the same way, except the complaint copy can sometimes be replaced by a notice of the object of the action. The original summons and complaint must be filed together, and the served copies generally go out together too, with narrow exceptions for service by publication and for in rem cases using a notice of object of action instead of the complaint.

The section also covers a handful of related mechanics: no service can happen before the action is properly commenced; fees are due to the clerk at filing; and certain extraordinary remedies — certiorari, quo warranto, habeas corpus, mandamus, or prohibition — can be commenced either by serving an original writ or by filing a complaint along with a court order that may shorten the usual time to answer.

A large share of the section is devoted to civil actions brought by prisoners over prison or jail conditions. Before filing that kind of case, a prisoner has to exhaust every administrative remedy the facility has made available, generally comply with the state’s notice-of-claim statutes, and attach documentation proving that exhaustion when the case is filed. Wisconsin courts must also dismiss a prisoner’s case seeking a filing-fee waiver if that prisoner has had three or more earlier actions dismissed for the reasons the statute lists, unless the prisoner is in imminent danger of serious physical injury. Together these provisions steer prisoner litigation toward the facility’s own grievance process first and discourage repeated meritless filings.

Frequently Asked Questions

When does a lawsuit officially start in Wisconsin?

For a case seeking a personal judgment, the action is commenced as to a defendant once the summons and complaint naming that person are filed with the court, provided an authenticated copy is served on the defendant within 90 days after filing, under section 801.02.

Do the summons and complaint have to be served together?

Generally yes. Section 801.02 requires the authenticated copies to be served together, with two exceptions: when service is by publication, only the summons is published (though a complaint copy must be mailed with it), and in an in rem or quasi in rem action, a notice of the object of the action may accompany the summons instead of the complaint.

Can service happen before a case is officially commenced?

No. Section 801.02 says no service may be made until the action has already been commenced by filing the summons and complaint as the section requires.

What must a prisoner do before suing over conditions in prison or jail?

Section 801.02 requires the prisoner to first exhaust all available administrative remedies the facility has established, generally comply with the state’s notice-of-claim requirements, and include documentation of that exhaustion with the initial pleading.

Can a Wisconsin court dismiss a prisoner’s lawsuit because of earlier dismissed cases?

Yes. If a prisoner seeks to proceed without prepaying fees and has had three or more prior actions dismissed for the reasons listed in section 801.02, the court must dismiss the new action, unless the prisoner is in imminent danger of serious physical injury.

Amendment History

History: Sup. Ct. Order, 67 Wis. 2d 585, 589 (1975); 1975 c. 218; 1981 c. 289, 317; 1995 a. 27; 1997 a. 133, 187; 2001 a. 16; Sup. Ct. Order No. 03-06A, 2005 WI 86, 280 Wis. 2d xiii; 2007 a. 20; 2015 a. 55.

Source & verification. Section text and official notes are reproduced verbatim from the Wisconsin Statutes, published by the Wisconsin Legislature (Legislative Reference Bureau). Last verified July 15, 2026. · Official source

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