Breione Walker v. Mark Wellens

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

BREIONE WALKER, Plaintiff, v. Case No. 25-CV-1070 MARK WELLENS, Defendant.

DECISION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON EXHAUSTION GROUNDS

Plaintiff Breione Walker, who is incarcerated at Stanley Correctional Institution, is proceeding on an Eighth Amendment claim based on allegations that Defendant Mark Wellens engaged in unwanted sexual touching by grabbing Plaintiff’s breasts. On February 4, 2026, Defendant filed a motion for summary judgment on the ground that Plaintiff did not exhaust the available administrative remedies before he initiated this action. Dkt. No. 15. In a notice and order, the Court reminded Plaintiff that, under Civil L.R. 56(b)(2), his response materials were due March 6, 2026. The Court warned Plaintiff that, if he failed to respond to the motion by the deadline, the Court would accept all facts asserted by Defendant as undisputed, which would likely result in summary judgment being granted in Defendant’s favor and the case being dismissed. The deadline has passed, and Plaintiff did not respond to Defendant’s motion or explain why he was unable to do so.

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 true as a result of Plaintiff’s failure to respond, the Court finds that Plaintiff did not exhaust the available administrative remedies before he filed this case. Defendant is therefore entitled to summary judgment. See 42 U.S.C. § 1997e(a); Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (“This circuit has taken a strict compliance approach to exhaustion.”).

IT IS THEREFORE ORDERED that Defendant’s motion for summary judgment (Dkt.

No. 15) is GRANTED and this case is DISMISSED without prejudice. The Clerk is directed to enter judgment accordingly.

Dated at Green Bay, Wisconsin on March 20, 2026. s/ Byron B. Conway BYRON B. CONWAY 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 $605.00 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 non- meritorious. 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 serious 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.