Mills v. Vanburen et al, No. 2:2019cv01870 - Document 106 (E.D. Wis. 2021)

Court Description: DECISION AND ORDER signed by Judge Brett Ludwig on 4/9/21. Defendants motion for summary judgment 86 is GRANTED. Plaintiff's claim against Robert Drehmel is DISMISSED without prejudice and the claims against the remaining Defendants are DISMISSED with prejudice. (cc: all counsel and mailed to pro se party) (MP)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN DEREK MILLS, Plaintiff, v. Case No. 19-cv-1870-bhl TORRIA VAN BUREN, et al., Defendants. DECISION AND ORDER On December 28, 2020, Defendants filed a motion for summary judgment. Dkt. No. 86. On January 13, 2021, the Court granted Plaintiff Derek Mills’ motion for an extension of time to respond to the motion. Dkt. No. 100. The Court ordered him to file his response materials by March 1, 2021, and reminded him that under Civil L. R. 7(d) failure to respond to the motion or to ask for additional time to respond by the deadline would be sufficient cause for the Court to grant the motion as a sanction for noncompliance. On March 8, 2021, a week after the deadline, Mills requested a second extension. Dkt. No. 104. He explained that he was in segregation and needed “a final extension of 30 days.” Id. He represented that he would get out of segregation on March 18, 2021 and would file his response materials by March 21, 2021. Id. The Court granted his motion and ordered him to file his response materials by April 1, 2021. Dkt. No. 105. The Court again reminded Mills that under Civil L. R. 7(d) failure to respond to the motion by the deadline would be sufficient cause for the Court to grant the motion as a sanction for noncompliance. The deadline has passed and Mills did not oppose the motion. The Court has reviewed Defendants’ motion, brief in support, and the undisputed facts, see Fed. R. Civ. P. 56(e)(2), and concludes that they are entitled to summary judgment. See Fed. R. Civ. P. 56(e)(3). Based on the proposed findings of fact submitted by Defendants and deemed true by the Court, Defendants are entitled to judgement as a matter of law because Mills failed to exhaust his available administrative remedies on his claim against Robert Drehmel and the remaining Defendants provided constitutionally adequate mental health care. 1 Additionally, pursuant to Civil L. R. 7(d), Mills’ failure to respond to Defendants’ motion is sufficient cause for the Court to grant the motion as a sanction for his noncompliance. IT IS THEREFORE ORDERED that Defendants’ motion for summary judgment (Dkt. No. 86) is GRANTED. IT IS FURTHER ORDERED that Mills’ claim against Robert Drehmel is DISMISSED without prejudice based on Mills’ failure to exhaust his available administrate remedies and his claims against the remaining Defendants are DISMISSED with prejudice. The Clerk is directed to enter judgment accordingly. Dated at Milwaukee, Wisconsin this 9th day of April, 2021. BY THE COURT: s/ Brett H. Ludwig BRETT H. LUDWIG United States District Judge 1 In addition to demonstrating that they there entitled to summary judgment on the merits, Defendants Jamie Engstrom and Torria Van Buren have shown that Mills failed to exhaust his available administrative remedies as to some of his claims against them. The Court is dismissing those claims on the merits. See Fluker v. County of Kankakee, 741 F.3d 787, 791-94 (7th Cir. 2013) (holding that it may make “perfect sense” for a court to address the merits, even after deciding a prisoner failed to exhaust his remedies). 2 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. 3

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