O'Malley v. Baumann, No. 2:2022cv00268 - Document 46 (E.D. Wis. 2023)

Court Description: DECISION AND ORDER signed by Judge William C Griesbach on 7/19/2023. Defendant's 38 MOTION for Summary Judgment on exhaustion grounds is GRANTED and this case is DISMISSED without prejudice. The Clerk is directed to enter judgment accordingly. (cc: all counsel and via US Mailt to O'Malley)(Griesbach, William)

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O'Malley v. Baumann Doc. 46 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN ROBERT C. O’MALLEY, Plaintiff, v. Case No. 22-C-268 RYAN BAUMANN, Defendant. DECISION AND ORDER On May 5, 2023, Defendant filed a motion for summary judgment on the ground that Plaintiff Robert O’Malley failed to exhaust the administrative remedies before he filed this lawsuit. Dkt. No. 38. The Court reminded O’Malley, who is representing himself, 1 that under Civil L. R. 56(b)(2) his response materials were due on June 4, 2023. Dkt. No. 42. The Court later extended O’Malley’s response deadline to July 10, 2023. Dkt. No. 45. O’Malley was informed that, if he did not respond by the deadline, the Court would accept all facts asserted by Defendant as true and would decide the motion without his input. Id. The deadline passed, and O’Malley did not oppose the motion. The Court has reviewed Defendant’s motion, brief in support, and the undisputed facts, see Fed. R. Civ. P. 56(e)(2), and concludes that Defendant is entitled to summary judgment. See Fed. R. Civ. P. 56(e)(3). Based on the proposed findings of fact submitted by Defendant and deemed The Court recruited counsel for the limited purpose of helping O’Malley prepare an amended complaint and participate in discovery. See Dkt. No. 18. The Court later concluded that O’Malley is capable of responding to Defendant’s summary judgment motion without the assistance of counsel. See Dkt. No. 45. 1 Case 2:22-cv-00268-WCG Filed 07/19/23 Page 1 of 2 Document 46 Dockets.Justia.com true by the Court as a result of O’Malley’s failure to respond, the Court concludes that O’Malley filed his inmate complaint beyond the fourteen-calendar day statutory limit and therefore did not properly exhaust the administrative remedies before he initiated this lawsuit. See Dkt. No. 40 at ¶¶2-5. Defendant is therefore entitled to judgment as a matter of law and this case must be dismissed. IT IS THEREFORE ORDERED that Defendant’s motion for summary judgment on exhaustion grounds (Dkt. No. 38) is GRANTED and this case is DISMISSED without prejudice. The Clerk is directed to enter judgment accordingly. The Clerk is also directed to mail a copy of this decision to O’Malley. Dated at Green Bay, Wisconsin this 19th day of July, 2023. s/ William C. Griesbach William C. Griesbach United States District Judge This order and the judgment to follow are final. Plaintiff may appeal this Court’s decision to the Court of Appeals for the Seventh Circuit by filing in this Court a notice of appeal within 30 days of the entry of judgment. See Fed. R. App. P. 3, 4. This Court may extend this deadline if a party timely requests an extension and shows good cause or excusable neglect for not being able to meet the 30-day deadline. See Fed. R. App. P. 4(a)(5)(A). If Plaintiff appeals, he will be liable for the $505.00 appellate filing fee regardless of the appeal’s outcome. If Plaintiff seeks leave to proceed in forma pauperis on appeal, he must file a motion for leave to proceed in forma pauperis with this Court. See Fed. R. App. P. 24(a)(1). Plaintiff may be assessed another “strike” by the Court of Appeals if his appeal is found to be nonmeritorious. See 28 U.S.C. §1915(g). If Plaintiff accumulates three strikes, he will not be able to file an action in federal court (except as a petition for habeas corpus relief) without prepaying the filing fee unless he demonstrates that he is in imminent danger of serous physical injury. Id. Under certain circumstances, a party may ask this Court to alter or amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief from judgment under Federal Rule of Civil Procedure 60(b). Any motion under Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry of judgment. Any motion under Federal Rule of Civil Procedure 60(b) must be filed within a reasonable time, generally no more than one year after the entry of judgment. The Court cannot extend these deadlines. See Fed. R. Civ. P. 6(b)(2). A party is expected to closely review all applicable rules and determine, what, if any, further action is appropriate in a case. 2 Case 2:22-cv-00268-WCG Filed 07/19/23 Page 2 of 2 Document 46

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