Obriecht, Andrew M. v. Frank, Matthew J. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1924
ANDREW M. OBRIECHT,
Plaintiff-Appellant,
v.
RICK RAEMISCH, Secretary of
the Wisconsin Department of
Corrections, MATTHEW J. FRANK,
in his individual capacity,
BYRON BARTOW, CHONA ARONG, et al.,Œ
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05 C 1171—J.P. Stadtmueller, Judge.
____________
SUBMITTED DECEMBER 19, 2007ŒŒ—DECIDED FEBRUARY 22, 2008
____________
Œ
Rick Raemisch has been substituted for his predecessor,
Matthew J. Frank, as Secretary of the Wisconsin Department of
Corrections. See Fed. R. App. P. 43(c). Matthew J. Frank re-
mains a defendant in his individual capacity, and we have
revised the caption accordingly.
ŒŒ
After an examination of the briefs and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal
is submitted on the briefs and the record. See Fed. R. App. P.
34(a)(2).
2 No. 07-1924
Before RIPPLE, MANION and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. Andrew Matthew Obriecht, a
Wisconsin prisoner, brought this action against various
employees and officers (collectively the “prison officials”)
of the Wisconsin Resource Center (“WRC”), the Wis-
consin mental health facility in which he was committed,
and the Wisconsin Department of Corrections (“WDOC”).
He alleged that he was denied procedural due process
when he was transferred to the WRC and when he was
forced to take psychotropic medications. The district
court granted summary judgment to the prison officials;
it held that Mr. Obriecht had failed to exhaust his admin-
istrative remedies. For the reasons set forth in this opin-
ion, we affirm the judgment of the district court.
I
BACKGROUND
Prior to 2003, Mr. Obriecht was held in a privately
operated correctional facility in Minnesota under the
auspices of the WDOC. In March 2003, at the recommenda-
tion of a psychiatrist, Mr. Obriecht was transferred to the
WRC. Between June 2003 and March 2004, while at the
WRC, Mr. Obriecht involuntarily was medicated. In
March 2004, Mr. Obriecht again was transferred, this time
to Fox Lake Correctional Institution, a Wisconsin prison.
When a program review committee at Fox Lake met in
July 2004 to discuss Mr. Obreicht, a social worker recom-
mended that Mr. Obriecht be returned to the WRC. This
social worker based the recommendation on a physician’s
report that Mr. Obriecht was hallucinating and delu-
sional. The program review committee then approved
Mr. Obriecht’s second transfer to the WRC, and that
No. 07-1924 3
transfer occurred in July 2004. While at the WRC,
Mr. Obriecht again involuntarily was medicated for
about three weeks.
DOC regulations provide an administrative review
system for inmate complaints (“ICRS”). See Wis. Admin.
Code §§ DOC 310.01-18. An inmate initiates the ICRS
review process by filing an offender complaint with the
Inmate Complaint Examiner. See Wis. Admin. Code
§§ DOC 310.04, DOC 310.11. Here, the defendant prison
officials contend that, although Mr. Obriecht did file an
offender complaint about the substantive decision
to transfer him to the WRC, he never complained about
the procedure used in making the decision to transfer
him. Mr. Obriecht asserts that he filed a separate offender
complaint on that issue but that it was ignored.1 Addi-
tionally, the prison officials maintain that Mr. Obriecht
never filed any offender complaints about forced med-
ication. Mr. Obriecht again contends that he did, but that
the complaints were ignored.
In November 2005, Mr. Obriecht brought this
section 1983 action. He challenges, among other issues not
raised on appeal, the procedures used to transfer him to
the WRC and the forced administration of psychotropic
1
Mr. Obriecht does not contend that his offender complaint
challenging the substance of the decision to transfer him also
included a challenge to the procedures used to transfer him. In
any event, Mr. Obriecht did not administratively appeal its
denial, and therefore, even if that complaint did include a
procedural challenge, Mr. Obriecht would not have exhausted
his administrative remedies as to that claim.
4 No. 07-1924
medicine.2 After the district court had screened his com-
plaint under 28 U.S.C. § 1915A, Mr. Obriecht moved for
a temporary restraining order and preliminary injunction.
The prison officials cross-moved for summary judg-
ment, contending that Mr. Obriecht had failed to exhaust
his administrative remedies. The district court denied
Mr. Obreicht’s motion and awarded summary judgment
to the prison officials. It concluded that Mr. Obriecht
had not exhausted his administrative remedies because
he had not filed any administrative complaints about the
procedures used to transfer him or about the forced use of
psychotropic medication.
In January 2007, within ten days of the order granting
summary judgment, Mr. Obriecht moved for reconsidera-
tion under Federal Rule of Civil Procedure 60(b).3 In
support of the motion, Mr. Obriecht submitted an affi-
davit and two offender complaints that he claimed to
2
Neither the record nor the district court’s order screening
Mr. Obriecht’s complaint definitively identifies the particular
transfer to the WRC and the specific round of medication
Mr. Obriecht challenges. However, we shall read broadly
Mr. Obriecht’s pro se complaint and assume that he challenges
both transfers to the WRC and both periods of involuntary
medication. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding
that pro se complaints drafted by prisoners are not held to the
same standards as pleadings drafted by lawyers); Kaba v. Stepp,
458 F.3d 678, 681, 687 (7th Cir. 2006) (holding that courts are
obliged to construe pro se complaints liberally).
3
Although the order granting summary judgment was issued
December 26, 2006, and Mr. Obreicht did not file his motion
until January 10, 2007, exclusion of Saturdays, Sundays and New
Year’s Day results in Mr. Obriecht’s motion being filed on the
tenth day after entry of judgment. See Fed. R. Civ. P. 6(a).
No. 07-1924 5
have filed in 2003 in order to challenge his first transfer
to the WRC and his subsequent forced medication. These
offender complaints do not have an assigned number
and do not show whether they were received by WRC staff.
The district court denied the motion. In its view, the
motion failed to meet any of the appropriate Rule 60(b)
grounds. In any event, ruled the district court, Rule 60(b)
is not an appropriate vehicle to introduce new evidence
that could have been introduced before the district court
granted summary judgment. Mr. Obriecht then filed a
second Rule 60(b) motion that also was denied.
II
DISCUSSION
We review de novo a district court’s determination that
an exhaustion requirement has not been met; we also
review de novo a grant of summary judgment. Kaba v.
Stepp, 458 F.3d 678, 681 (7th Cir. 2006). Failure to exhaust
administrative remedies is an affirmative defense, and
consequently, the burden of proof is on the prison officials.
Conyers v. Abitz, 416 F.3d 580, 584 (7th Cir. 2005). We
review for an abuse of discretion a district court’s denial
of a motion for relief under either Federal Rule of Civil
Procedure 59(e) or 60(b). Harrington v. City of Chicago,
433 F.3d 542, 546 (7th Cir. 2006).
A.
Prisoners must exhaust available administrative remedies
before filing a claim under section 1983. 42 U.S.C.
§ 1997e(a); see Booth v. Churner, 532 U.S. 731, 740-41 (2001).
6 No. 07-1924
Exhaustion is required even if the prisoner believes his
efforts in securing relief will be futile, Booth, 532 U.S. at 741
n.6, or if the administrative authority has no power to
grant the requested relief, Porter v. Nussle, 534 U.S. 516,
524 (2002); Dole v. Chandler, 438 F.3d 804, 808-09 (7th Cir.
2006).
Mr. Obriecht submits that, in granting summary judg-
ment to the prison officials, the district court ignored
evidence that he had exhausted his administrative reme-
dies. The record, however, does not support Mr. Obriecht’s
position. Mr. Obriecht did not dispute the prison officials’
proposed finding of fact that he had not submitted any
offender complaints challenging the procedures used to
transfer him. Mr. Obriecht also did not dispute that he
had failed to file any complaint about forced medica-
tion. On appeal, however, he now insists that he did
exhaust his remedies and invites our attention to his
brief opposing summary judgment, his supplemental
affidavit and the purported offender complaints for
support.
The conclusory arguments in Mr. Obriecht’s brief
opposing summary judgment were not supported by
admissible evidence. As for the purported offender com-
plaints and affidavit, Mr. Obriecht submitted them only
after the district court had granted summary judgment
to the prison officials. Thus, the district court did not err
in concluding, on the record before it, that Mr. Obriecht
had failed to file any offender complaints regarding
the procedures used to transfer him and his forced med-
ication.
Mr. Obriecht also contends, with regard to his forced
medication claim, that his failure to exhaust should be
No. 07-1924 7
excused because he was afforded constitutionally inade-
quate access to legal materials. Mr. Obriecht never raised
this argument in the district court and, as a result, it is
forfeited on appeal. United States v. Griffin, 194 F.3d 808, 824
(7th Cir. 1999).
The district court’s grant of summary judgment must
stand.
B.
Mr. Obriecht maintains that the district court erred in
analyzing his first motion to reconsider under Rule 60(b)
rather than under Rule 59(e). Mr. Obriecht is correct on
this point. The district court should have read broadly
his pro se filing. Kaba, 458 F.3d at 681. Moreover, it is
the substance, rather than the form, of a post-judgment
motion that determines the rule under which it should
be analyzed. Gleash v. Yuswak, 308 F.3d 758, 761 (7th Cir.
2002) (collecting authority).
Before 1993, a motion under Federal Rule of Civil Pro-
cedure 59(e) tolled the time for filing an appeal, but a
motion under Rule 60(b) did not. See Jennings v. Rivers,
394 F.3d 850, 855 n.4 (10th Cir. 2005). Thus, an appeal
from the denial of a motion under Rule 59(e) encom-
passed review of the underlying judgment, but an appeal
from the denial of a Rule 60(b) motion did not, of its
own force, allow for appellate review of the underlying
judgment. Id. In the interest of avoiding disputes over
appealability, we generally construed any post-judg-
ment motion filed within 10 days of the entry of judg-
ment as a motion under Rule 59(e). See, e.g., Ball v. City
of Chicago, 2 F.3d 752, 760 (7th Cir. 1993).
8 No. 07-1924
The 1993 addition of Federal Rule of Appellate Procedure
4(a)(4)(F)4 provided that a Rule 60(b) motion filed within
10 days of the entry of judgment also tolled the time
for filing an appeal, eliminating the need to characterize
post-judgment motions according to their timing.
Recently, in Borrero v. City of Chicago, 456 F.3d 698, 701-02
(7th Cir. 2006), we clarified that whether a motion
filed within 10 days of the entry of judgment should be
analyzed under Rule 59(e) or Rule 60(b) depends on the
substance of the motion, not on the timing or label affixed
to it. Therefore, the former approach—that, no matter
what their substance, all post-judgment motions filed
within 10 days of judgment would be construed as
Rule 59(e) motions—no longer applies. In short, motions
are to be analyzed according to their terms. Id. When
the substance and label of a post-judgment motion filed
within 10 days of judgment are not in accord, district courts
should evaluate it “based on the reasons expressed by the
movant.” Jennings, 394 F.3d at 855. Neither the timing of the
motion, nor its label (especially when drafted by a pro se
litigant), is dispositive with respect to the appropriate
characterization of the motion. Id.Mr. Obriecht based his motion for reconsideration on
errors of law, a basis encompassed by Rule 59(e), not
Rule 60(b). The district court therefore should have
treated Mr. Obriecht’s motion as one under Rule 59(e). See
Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989)
(noting that Rule 59(e) encompasses reconsideration of
matters decided on the merits); United States v. Antonelli,
4
This rule is now codified at Federal Rule of Appellate Pro-
cedure 4(a)(4)(A)(vi).
No. 07-1924 9
371 F.3d 360, 361 (7th Cir. 2004) (explaining that courts
should look to the substance, not the label, of a pro se
filing to determine its character).
Nevertheless, even construing his motion as a motion
under Rule 59(e), Mr. Obriecht cannot prevail. Rule 59(e)
allows a court to alter or amend a judgment only if the
petitioner can demonstrate a manifest error of law or
present newly discovered evidence. Sigsworth v. City of
Aurora, 487 F.3d 506, 511-12 (7th Cir. 2007). Because the
district court correctly granted summary judgment to the
prison officials based on Mr. Obriecht’s failure to exhaust
his administrative remedies, he cannot show a manifest
error of law. As for the new evidence, motions under
Rule 59(e) cannot be used to present evidence that
could have been presented before judgment was entered.
Id. at 512. If Mr. Obriecht really did file the offender
complaints when he says he did, then he could have—and
should have—presented them to the district court before
it rendered judgment. Mr. Obriecht offers no reason why
he could not have done so. We therefore conclude that
the district court did not abuse its discretion in denying
Mr. Obriecht’s motion.
10 No. 07-1924
Conclusion
For the forgoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
USCA-02-C-0072—2-22-08