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 remains 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).

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

____________
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 Wisconsin 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 administrative remedies. For the reasons set forth in this opinion, 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 recommendation 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 recommended 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 delusional. The program review committee then approved

Mr. Obriecht’s second transfer to the WRC, and that
No. 07-1924 3

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.

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

 Additionally, the prison officials maintain that Mr. Obriecht

never filed any offender complaints about forced medication. 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
4 No. 07-1924

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).

medicine.2 After the district court had screened his complaint under 28 U.S.C. § 1915A, Mr. Obriecht moved for

a temporary restraining order and preliminary injunction.

The prison officials cross-moved for summary judgment, 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 reconsideration under Federal Rule of Civil Procedure 60(b).3

 In

support of the motion, Mr. Obriecht submitted an affidavit and two offender complaints that he claimed to
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 judgment to the prison officials, the district court ignored

evidence that he had exhausted his administrative remedies. 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 medication. 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 complaints 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 medication.

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 inadequate 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 Procedure 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) encompassed 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-judgment motion filed within 10 days of the entry of judgment 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

4 This rule is now codified at Federal Rule of Appellate Procedure 4(a)(4)(A)(vi).

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,
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