785 N.W.2d 687
No. 2008AP002723.Court of Appeals of Wisconsin.
March 25, 2010.
APPEAL from an order of the circuit court for Grant County: ROBERT P. VAN DE HEY, Judge. Affirmed.
Before Dykman, P.J., Vergeront and Higginbotham, JJ.
PER CURIAM.
¶ 1 Titus Henderson appeals an order dismissing his petition for a temporary restraining order. We affirm.
¶ 2 Henderson’s petition named prison officials as defendants. Henderson relied on the harassment injunction statute, WIS. STAT. § 813.125 (2007-08).[1] He alleged various misdeeds committed against Henderson in prison by prison staff. The circuit court dismissed the petition on the ground that Henderson had failed to exhaust his administrative remedies as required by WIS. STAT. § 801.02(7)(b).
¶ 3 Henderson’s opening brief on appeal makes few, if any arguments related to exhaustion of remedies. He does not argue that the record, as it currently exists, shows exhaustion. The closest he comes is arguing that prison staff prevented him from sending documents to the court to show he exhausted his remedies. However, the circuit court held an evidentiary hearing at which Henderson testified that staff had prevented him from sending his documents, and the court apparently found that testimony not credible. The court stated that Henderson had not shown he had been prohibited from showing exhaustion of remedies. Based on the record before us, this finding is not clearly erroneous. See WIS. STAT. § 805.17(2). Therefore, we conclude the court properly dismissed this action for failure to exhaust remedies.
¶ 4 To the extent Henderson makes additional arguments about exhaustion in his reply brief, we decline to consider those because the respondents have not had an opportunity to respond. See Swartwout v. Bilsie, 100 Wis. 2d 342, 346 n. 2, 302 N.W.2d 508 (Ct. App. 1981).
By the Court. — Order affirmed.
This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.