In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1478

MICHAEL MASSEY, inmate at the Federal
Correctional Center in Pekin, Illinois, ANTHONY
LEISURE, inmate at the Federal Correctional Center in
Pekin, Illinois, JERMAINE FRANKLIN, inmate at the Federal
Correctional Center in Pekin, Illinois, et al.,

Plaintiffs-Appellants,

v.

DAVID W. HELMAN, Warden of the Federal
Correctional Center in Pekin, Illinois, in his
official and individual capacity, FERDINAND SOMALIA,
Health Services Administrator of the Federal
Correctional Center in Pekin, Illinois,
in his official and individual capacity,
MIGUEL GONZALEZ, Assistant Warden of the
Federal Correctional Center in Pekin,
Illinois, in his official and individual
capacity, et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Central District of Illinois.
No. 99 C 3020--Richard Mills, Judge.

ARGUED OCTOBER 26, 2000--DECIDED July 30, 2001



  Before BAUER, POSNER and RIPPLE, Circuit
Judges.

  RIPPLE, Circuit Judge. Michael Massey
and thirteen other inmates (collectively
"Mr. Massey") at the Federal Correctional
Center in Pekin, Illinois ("FCC Pekin" or
"the prison"), brought this Bivens action
against the warden, the assistant warden,
the health services administrator, and
the medical director of the Bureau of
Prisons (collectively "the
defendants")./1 Mr. Massey sought money
damages for alleged violations of the
Eighth Amendment. On the defendants’
motion, the district court dismissed Mr.
Massey’s complaint without prejudice for
failure to exhaust administrative
remedies. Mr. Massey now appeals. We
deferred our decision in this case until
the Supreme Court of the United States
rendered its decision in Booth v.
Churner, 121 S. Ct. 1819 (2001). For the
reasons set forth in the following
opinion, we now affirm the judgment of
the district court.

I

BACKGROUND

A.   Facts/2

  Prior to his incarceration at FCC Pekin
in March 1996, Mr. Massey suffered an
abdominal hernia. Dr. John Otten, a
physician at FCC Pekin, recommended that
Mr. Massey have surgery to repair the
hernia, but no surgery was arranged
immediately. Indeed, Mr. Massey’s hernia
was not repaired surgically until January
28, 1998./3

  FCC Pekin maintains an administrative
review procedure through which inmates
can raise grievances regarding the
conditions of their confinement,
including their medical care. The
procedure requires the sequential filing
of four forms. First, an inmate must file
a form called a BP-8 with the prison
staff./4 If the inmate is dissatisfied
with the response he receives, he must
file a BP-9 seeking administrative review
with the warden. See 28 C.F.R. sec.
542.14(a). If the inmate is dissatisfied
with the warden’s resolution of his
grievance, he has twenty days to file a
BP-10 with the Bureau of Prisons’
regional director. See 28 C.F.R. sec.
542.15(a). If the inmate is dissatisfied
with the regional director’s disposition,
his fourth and final appeal must be made
to the Bureau of Prisons’ general counsel
by filing a BP-11 within thirty days. See
id.


B.   Procedural History

1.

  Mr. Massey never used FCC Pekin’s four-
step administrative review procedure to
protest the quality of the medical care
he had received./5 Instead, he embarked
on a course of litigation against various
officials at FCC Pekin, including the
defendants in this case. See Massey v.
Helman, 196 F.3d 727 (7th Cir. 2000),
cert. denied, 121 S. Ct. 2214 (2001)
("Massey I"); see also Massey v. Wheeler,
221 F.3d 1030 (7th Cir. 2000) ("Massey
II"). Mr. Massey filed his first suit,
Massey I, prior to the time his hernia
was repaired surgically; he alleged that
the defendants violated his Eighth
Amendment rights by maintaining policies
that deprived him of necessary medical
care for his hernia. See Massey I, 196
F.3d at 731. We upheld the district
court’s dismissal of his complaint for
failure to exhaust his administrative
remedies as required by 42 U.S.C. sec.
1997e(a). See id. at 732-35. We held
that, because Mr. Massey’s hernia had not
yet been repaired at the time he filed
suit, the administrative grievance
procedure might have provided him with
some form of relief; therefore,
administrative remedies were available to
him within the meaning of sec. 1997e(a).
See id. at 734./6

2.

  Mr. Massey filed the present suit on
January 20, 1999, after his hernia had
been repaired surgically. He raised the
same Eighth Amendment claims he had
raised in his first suit. The defendants
moved to dismiss Mr. Massey’s complaint
on March 24, 1999, for failure to exhaust
administrative remedies. The defendants
attached to their motion fourteen
affidavits, one for each plaintiff, that
indicated that none of the plaintiffs had
completed the four-step administrative
review process.

  On April 8, 1999, Mr. Massey filed an
amended complaint in which he alleged
that administrative remedies were
unavailable to him because he sought only
money damages that the grievance
procedure could not provide. Mr. Massey
subsequently submitted to the district
court a copy of a form he gave to his
unit manager, Suzanne Wheeler. The form--
dated February 19, 1999--asked that
Wheeler provide Mr. Massey with the BP-8,
9, 10, and 11 forms. Wheeler returned Mr.
Massey’s written request with a notation
that the BP forms were given out one at
a time, and, that if Mr. Massey wanted
the forms for litigation, he would have
to obtain them through discovery.

  On the basis of Wheeler’s refusal to
provide him with the four BP forms, Mr.
Massey argued to the district court that
there were no administrative remedies
available to him because he was being
denied the forms he needed to use the
prison’s grievance procedure. Mr. Massey
also asked that the district court
convert the defendants’ motion to dismiss
into one for summary judgment because the
defendants had attached affidavits to the
motion. Lastly, Mr. Massey asked that he
be allowed to conduct discovery to
explore his claim that administrative
remedies were unavailable.

  The district court denied each of Mr.
Massey’s requests and granted the
defendants’ motion to dismiss. Relying on
our decisions in Massey I and Perez v.
Wisconsin Department of Corrections, 182
F.3d 532 (7th Cir. 1999), the district
court held that Mr. Massey was required
to exhaust the prison’s administrative
review process, even if that process
could not provide him with the money
damages he sought. The court noted that
Mr. Massey had alleged in his complaint
only that administrative remedies would
not provide him the relief he sought; he
had not alleged that he had exhausted the
prison’s administrative remedies, as
required by sec. 1997e(a). Further, the
court stated that it did not rely on any
of the affidavits the parties submitted
in reaching its decision to grant the
defendants’ motion. Therefore, the court
did not convert the motion to dismiss
into one for summary judgment.

  The court also was unpersuaded by Mr.
Massey’s claim that he was denied the
forms he needed to use the prison’s
grievance process. The court noted that
Mr. Massey’s request for the forms was
dated February 19, which was after the
time he had filed his suit. Because Mr.
Massey had not attempted to use the
prison’s administrative review procedure
prior to the time he filed suit, he had
not exhausted his administrative
remedies.

3.

  Following the district court’s dismissal
of his complaint, Mr. Massey filed a
motion to alter or amend the court’s
order. He attached to his motion an
affidavit from his attorney in which his
attorney stated that he had credible evi
dence that there was a conspiracy at FCC
Pekin to deny inmates access to the
prison’s administrative review process.
The district court denied Mr. Massey’s
motion without addressing the attorney’s
affidavit. Mr. Massey then filed this
appeal.

II

DISCUSSION

  We review a district court’s dismissal
of a complaint de novo. See Massey I, 196
F.3d at 732. We accept all well-pleaded
allegations as true and draw all
reasonable inferences in favor of the
plaintiff. See id. We shall affirm the
dismissal only if it is clear that no
relief is warranted under any set of
facts that could be proven consistent
with the allegations. See id.

  Following its amendment by the Prison
Litigation Reform Act of 1995,/7 42
U.S.C. sec. 1997e(a) provides:

No action shall be brought with respect
to prison conditions under section 1983
of this title, or any other Federal law,
by a prisoner confined in any jail,
prison, or other correctional facility
until such administrative remedies as are
available are exhausted.

In an effort to excuse his failure to
employ FCC Pekin’s four-step
administrative review procedure, Mr.
Massey offers several explanations for
why administrative remedies are not
"available" to him within the meaning of
sec. 1997e(a).

A.

  Mr. Massey submits that there are no
administrative remedies available to him
because FCC Pekin’s grievance procedure
cannot provide him with money damages,
which is the only form of relief he
seeks. The Supreme Court’s recent
decision in Booth forecloses this
argument. The Supreme Court held in Booth
that, so long as the relevant administra
tive process has the authority to take
some action in response to a complaint,
an inmate must exhaust that process, even
if he will not obtain the specific form
of relief he desires. See Booth v.
Churner, 121 S. Ct. 1819, 1823 & 1825
(2001) ("Congress has mandated exhaustion
clearly enough, regardless of the relief
offered through administrative
procedures."). Mr. Massey has not alleged
that FCC Pekin has no authority to
respond to his administrative complaint
in some manner; instead, he alleges only
that using FCC Pekin’s grievance process
would be futile because it will not
provide him with money damages. Booth
mandates, however, that we may "not read
futility or other exceptions into
statutory exhaustion requirements where
Congress has provided otherwise." Id. at
1825 n.6. Thus, we cannot accept Mr.
Massey’s argument that there are no
administrative remedies available to him
because the prison cannot give him money
damages. Mr. Massey was required to
exhaust FCC Pekin’s administrative review
process before filing suit in federal
court regardless of the type of relief he
sought.

B.

  Mr. Massey offers another explanation
for why there are no administrative
remedies available to him. He claims that
he was denied the forms he needed to
register a complaint through FCC Pekin’s
administrative review process, which
rendered that process unavailable to him.
To support his claim, Mr. Massey points
to Wheeler’s refusal to give him the BP-
8, 9, 10, and 11 forms. Like the district
court, we do not believe that Wheeler’s
refusal to give Mr. Massey the forms
supports his assertion that there were no
administrative remedies available to him.

  The form on which Mr. Massey submitted
his request to Wheeler is dated February
19, 1999. This lawsuit was filed on
January 20, 1999, one month before Mr.
Massey submitted his request to Wheeler.
Even if Wheeler improperly denied Mr.
Massey the forms, as he alleges, Mr.
Massey makes no claim that he ever
requested the forms before he filed the
instant suit. Because Mr. Massey made no
effort to use the prison’s administrative
review process prior to the time he filed
suit, Wheeler’s refusal to provide the
forms could not have affected his ability
to do so. Mr. Massey’s claim that no
administrative remedies were available to
him because Wheeler refused to give him
the BP forms cannot excuse his failure to
exhaust./8

C.
  Mr. Massey also claims that
administrative remedies are not available
to him because he has named many of the
people who will assess his grievances,
including Wheeler and FCC Pekin’s warden,
as defendants in his various lawsuits.
According to Mr. Massey, the dual status
of these individuals as decision-makers
and as defendants renders them biased,
and no true administrative remedy is
available to him.

  The courts of appeals that have
confronted the issue are in agreement
that the existence of a prison grievance
procedure confers no liberty interest on
a prisoner. In Adams v. Rice, 40 F.3d 72,
75 (4th Cir. 1994), the Court of Appeals
for the Fourth Circuit held that the
Constitution creates no entitlement to
grievance procedures or access to such
procedures voluntarily established by the
state. The Fourth Circuit’s decision is
in conformity with the earlier decision
of the Eighth Circuit in Buckley v.
Barlow, 997 F.2d 494 (8th Cir. 1993). In
Buckley, the court explained that,
although a violation of a state-created
liberty interest can amount to a
violation of the Constitution, not every
violation of state law or state-mandated
procedure is a violation of the
Constitution. See Buckley, 997 F.2d at
495. A state-created prison grievance
procedure is simply a procedural right
and does not confer any substantive right
upon an inmate. See id.

  Indeed, this circuit, in Shango v.
Jurich, 681 F.2d 1091, 1100 (7th Cir.
1982), stressed that procedural
protections do not in and of themselves
create cognizable liberty or property
interests. In Mann v. Adams, 855 F.2d
639, 640 (9th Cir. 1988), the Ninth
Circuit, citing our decision in Shango,
also held that there is no legitimate
claim of entitlement to a grievance
procedure. The court explained that the
Supreme Court has held that "’a State
creates a protected liberty [interest] by
placing substantive limitations on
official discretion.’" Mann, 855 F.2d at
640 (quoting Olim v. Wakinekona, 461 U.S.
238, 249 (1983)). A procedural protection
does not in and of itself create a
property or liberty interest.

  The Court of Appeals for the Eighth
Circuit, in Flick v. Alba, 932 F.2d 728
(8th Cir. 1991), has held that federal
prison administrative remedy procedures
do not "in and of themselves" create a
liberty interest in access to that
procedure. Flick, 932 F.2d at 729.
Notably, the court added that the
prisoner’s right to petition the
government for redress is the right of
access to the courts, a right that is not
compromised by the prison’s refusal to
entertain his grievance. See id.

   Mr. Massey has yet to submit a
grievance and has offered no evidentiary
support for his assertion that the
decision-makers who will address his
grievance are biased against him. Without
ever having filed a grievance with
respect to the medical care problems at
issue here, Mr. Massey cannot even point
to an adverse result arguably reached
because of bias. He therefore cannot
claim that the participation of the
defendants in the processing of the
grievance at issue ever has impeded his
ability to seek meaningful review in the
courts./9

  Allegations of specific unfairness can
be adjudicated by the district court in
due course once Mr. Massey has complied
with the exhaustion requirement of sec.
1997e(a). In the present procedural
posture, we do not believe that Mr.
Massey’s conclusory allegation that the
prison’s grievance procedure will be
unfair because some of the decision-
makers have been named as defendants
renders that procedure unavailable to him
within the meaning of sec. 1997e(a).

Conclusion

  Mr. Massey was required to exhaust FCC
Pekin’s administrative remedies even
though those remedies would not provide
him with the money damages he sought. His
other arguments do not establish that the
prison’s administrative remedies were
unavailable to him. Therefore, the
district court did not err in dismissing
Mr. Massey’s complaint for failure to
exhaust.

AFFIRMED

FOOTNOTES

/1 Dr. John Otten, a physician at FCC Pekin, origi-
nally was a plaintiff in this suit as well. He
sued the defendants for retaliatory discharge and
also brought an Eighth Amendment claim on behalf
of his patients. The district court dismissed the
retaliatory discharge count for failure to state
a claim and dismissed the Eighth Amendment claim
for lack of standing. Dr. Otten has not appealed.

/2 Mr. Massey filed an earlier appeal very similar
to this one in which we issued a published
opinion. See Massey v. Helman, 196 F.3d 727 (7th
Cir. 2000), cert. denied, 121 S. Ct. 2214 (2001).
Familiarity with the facts of the case as set
forth in that opinion is assumed, and we limit
our recitation of the facts here to those neces-
sary to an understanding of the issues presented
in this appeal.

/3 Like Mr. Massey, the other inmate-plaintiffs in
this case suffered from various medical maladies,
including keloid scars, arthritis, various skin
conditions, injured joints, tonsillitis, and
diabetes. Also like Mr. Massey, the other plain-
tiffs sought medical assistance from FCC Pekin’s
health services unit and were dissatisfied with
the care they initially received.

/4 See 28 C.F.R. sec. 542.13(a) (requiring wardens
to establish procedures by which inmates may
present concerns to the prison staff for informal
resolution).

/5 Some of the other inmate-plaintiffs did file one
or two of the BP forms, but none of them complet-
ed the four-step process.

/6 Mr. Massey’s second suit, Massey II, alleged that
the prison violated his constitutional rights by
restricting his unmonitored telephone conversa-
tions with his attorney. See Massey v. Wheeler,
221 F.3d 1030, 1032-33 (7th Cir. 2000). We upheld
the district court’s dismissal of Mr. Massey’s
complaint for failure to exhaust administrative
remedies. See id. at 1034. In doing so, we
determined that Mr. Massey’s allegation in his
complaint that there were no administrative
remedies available to him because "any adminis-
trative remedies that are claimed to exist are in
fact a sham" was insufficient to avoid the ex-
haustion requirement of sec. 1997e(a). Id. (in-
ternal quotation marks omitted).

/7 Pub. L. No. 104-134, 110 Stat. 1321-71.

/8 Mr. Massey argues that the district court should
have converted the defendants’ motion to dismiss
into a motion for summary judgment and allowed
him to conduct discovery because the defendants
had attached affidavits to their motion. Although
the district court stated that it did not rely on
the parties’ extraneous submissions in reaching
its decision to dismiss the complaint, the court
did look at the date on Mr. Massey’s request for
the BP forms to determine whether he submitted
the request prior to the time he filed suit.
Technically, then, the district court did consult
matters outside of the pleadings, which effec-
tively converted the motion to dismiss into one
for summary judgment on this issue. See Fed. R.
Civ. P. 12(c). The district court should have
given Mr. Massey notice of the Rule 12 conversion
and an opportunity to respond. See id.; see also
Alioto v. Marshall Field’s & Co., 77 F.3d 934,
936 (7th Cir. 1996). However, this procedural
oversight does not require reversal if there is
nothing the litigants could have submitted to the
court that would have created a genuine issue of
material fact. See Alioto, 77 F.3d at 936. In
this case, the date on Mr. Massey’s request for
the BP forms demonstrates that no amount of
discovery or additional argument could have
created a genuine issue of material fact as to
whether Mr. Massey tried to use the prison’s
administrative review procedure prior to having
filed suit; it is clear that he did not. More-
over, the arguments Mr. Massey makes in an at-
tempt to demonstrate that administrative review
was unavailable or that the defendants ought to
be estopped from relying on the exhaustion re-
quirement presuppose that he made a timely re-
quest for the BP forms, which he did not do.
Consequently, the district court’s failure to
provide the proper notice does not require rever-
sal. Cf. In re Wade, 969 F.2d 241, 249 n.10 (7th
Cir. 1992) ("When conversion should have, but did
not, take place, the district court will not be
reversed if nothing else could have been submit-
ted that would alter a finding of summary judg-
ment.").

/9 Mr. Massey contends that the existence of actual
bias is demonstrated by (1) Wheeler’s refusal to
give him the BP forms and (2) the affidavit that
his attorney submitted to the district court in
which the attorney alleged that he had credible
evidence that there was a conspiracy among FCC
Pekin officials to deny inmates access to the
prison’s administrative review process. Neither
of these submissions will salvage Mr. Massey’s
claim. As we noted earlier, Wheeler’s refusal to
provide him with all of the grievance forms at
the same time did not come until after Mr. Massey
had filed his complaint in this action. The
affidavit of Mr. Massey’s attorney also is of no
help. The attorney’s affidavit is conclusory and
unsupported. Moreover, Mr. Massey did not submit
the affidavit to the district court until he
filed his motion to alter or amend judgment. "A
party may not use a motion for reconsideration to
introduce new evidence that could have been
presented earlier." Oto v. Metro. Life Ins. Co.,
224 F.3d 601, 606 (7th Cir. 2000), cert. denied,
121 S. Ct. 1097 (2001). The affidavit submitted
by Mr. Massey’s attorney was executed on June 1,
1999. The district court did not dismiss Mr.
Massey’s complaint until November 30, 1999. The
attorney’s affidavit was available prior to the
time the district court dismissed Mr. Massey’s
complaint, but Mr. Massey did not offer any
explanation to the district court as to why he
had not submitted the affidavit earlier. Given
the untimely filing of the affidavit, Mr. Mas-
sey’s failure to explain the tardiness, and the
conclusory nature of the affidavit, the district
court did not err in failing to consider the
allegations it contained.
