                              UNPUBLISHED ORDER
                            Not to be cited per Circuit Rule 53




            United States Court of Appeals
                              For the Seventh Circuit
                              Chicago, Illinois 60604

                               Submitted April 14, 2005
                                Decided June 9, 2005

                                         Before

                           Hon. KENNETH F. RIPPLE, Circuit Judge

                           Hon. MICHAEL S. KANNE, Circuit Judge

                           Hon. DIANE P. WOOD, Circuit Judge


No. 04-4288

NATHANIEL ALLEN LINDELL,                           Appeal from the United States District
             Plaintiff-Appellant,                  Court for the Western District
                                                   of Wisconsin
      v.
                                                   No. 02-C-21-C
CINDY O'DONNELL, Security Chief,
JOHN RAY, PETER HUIBREGTSE,                        Barbara B. Crabb, Chief Judge.
et al.,
            Defendants-Appellees.

                                       ORDER

       In this successive appeal, Nathaniel Lindell, an inmate at the Wisconsin Secure
Program Facility (WSPF), again is before us seeking redress for alleged violations of his
constitutional rights. In 2002, Lindell sued the defendant employees of WSPF alleging
in part that they violated his First Amendment rights. They did so, he claimed, by
confiscating postcards from his cell and enforcing the WSPF’s “publisher’s only” rule,
under which inmates were permitted to receive published materials only from the
publisher or a commercial source, so strictly that Lindell could not receive clippings or
photocopies of published articles. The district court dismissed the claim relating to the
confiscation of his postcards after screening his complaint under 28 U.S.C. § 1915A.
Lindell succeeded in persuading the court to enter an injunction modifying the
“publisher’s only” rule. On appeal, we concluded that the court’s dismissal of the First
No. 04-4288                                                                        Page 2


Amendment claim at the screening stage was premature, and we remanded this part of
the case for further proceedings. Lindell v. Frank, 377 F.3d 655, 657 (7th Cir. 2004). In
response to the state’s appeal, we found that the injunction was too broad and
instructed the court to modify it to conform with the relevant portion of the Prison
Litigation Reform Act (PLRA), 18 U.S.C. § 3626(a)(1)(A). Id. at 660-61.
       On remand, the district court again dismissed Lindell’s First Amendment claim,
this time because he failed to exhaust his administrative remedies. It redrafted the
injunction in response to the instructions in our opinion. Lindell appealed again,
arguing that the district court erred in dismissing his claim and violated his
constitutional rights in the way that it modified the injunction. We conclude that the
district court properly disposed of the case, and we thus affirm the court’s judgment.
                                            I
        The PLRA requires that “no action shall be brought with respect to prison
conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined
in a jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). To exhaust the available administrative
remedies, the prisoner must take all steps required by the institution’s grievance
system, in the way prescribed by the institution. Pozo v. McCaughtry, 286 F.3d 1022,
1023 (7th Cir. 2002), Strong v. David, 297 F.3d 646, 649-50 (7th Cir. 2002). But see Ngo
v. Woodford, No. 03-16042, 2005 U.S. App. LEXIS 4809, *29 (9th Cir. Mar. 24, 2005)
(holding that the plaintiff exhausted all his available remedies because his
administrative appeal was time barred and “no further level of appeal remained in the
state prison's internal appeals process”). In this case, Lindell was required to comply
with all pertinent requirements imposed by Wisconsin’s grievance procedure. If he did
not, then he has not satisfied the PLRA’s exhaustion requirement.
       The relevant procedures in this case are those that the Wisconsin Department of
Correction had in effect in 2001. See Wis. Admin. Code §§ DOC 310.01-310.19 (2001).
Under its Complaint Procedures, an inmate is required to file his complaint with the
prison’s institution complaint examiner (ICE) “within 14 calendar days after the
occurrence giving rise to the complaint,” unless the ICE accepts a late complaint for
good cause. § DOC 310.09(3). The ICE is required to send an acknowledgment of receipt
of the complaint to the inmate within five working days after receiving the complaint.
§ DOC 310.11(2). “[W]ithin 15 working days from the date of acknowledgment,” the
ICE is required to review and investigate the complaint and send a report and
recommendation to the appropriate reviewing authority. § DOC 310.11(11). Thus, 20
working days after an inmate has filed a complaint, the ICE must have filed its report
and recommendation to the appropriate reviewing authority. The appropriate reviewing
authority must make its decision “within 5 working days following receipt of
recommendation unless extended for cause and upon notice to all interested parties.”
§ DOC 310.12.
No. 04-4288                                                                       Page 3


       Once the appropriate reviewing authority issues its decision, the complainant has
10 days to appeal the decision to the CCE. § DOC 310.13(1). The rules also anticipate
the problem of nonreceipt of the decision: “[i]f the complainant does not receive the
decision [of the appropriate reviewing authority] within 23 working days of the ICE’s
receipt of the complaint, the parties shall consider the complaint dismissed and the
complainant may appeal immediately.” § DOC 310.12(3) (amended in December 2002
to extend the time period for the appropriate reviewing authority to respond to 30 days).
The CCE may review “an appeal filed later than 5 calendar days after the receipt of the
decision if the elapsed time has not made it difficult or impossible to investigate the
complaint.” § DOC 310.13(3). The CCE then sends its written recommendation along
with the complaint file to the secretary who is required to make a decision within 10
working days. § DOC 310.13(7) and 310.14(1).
       In this case, Lindell timely filed an inmate complaint on July 7, 2001, alleging
that his cell was searched and 15 postcards belonging to him were seized. He claimed
that his free speech rights were violated and that “no legitimate penological reason”
existed to forbid the possession of these items. Two days later, Ellen Ray, the ICE,
acknowledged receipt of Lindell’s complaint. On July 26, 2001, the ICE recommended
to the appropriate reviewing authority that the complaint be dismissed. Peter
Huibregtse reviewed the complaint, accepted the recommendation of the ICE, and
dismissed Lindell’s complaint on July 30, 2001. The decision advised Lindell that he had
10 days to appeal the decision to the CCE. It was at this point, the record reveals, that
Lindell slipped. He did not file his appeal with the CCE until November 26, 2001. His
failure to appeal in time, he claims, occurred because he did not receive Huibregtse’s
decision before November 26th. On Dec. 4, 2001, John Ray of the CCE acknowledged
receipt of Lindell’s appeal; six days later Ray recommended that the complaint be
dismissed because it had not been filed within 10 days of the appropriate reviewing
authority’s decision. On December 13, 2001, Cindy O’Donnell, a representative for the
Office of the Secretary, accepted the CCE’s recommendation and dismissed Lindell’s
complaint as untimely.
       None of these facts had been explored in any detail during the earlier phase of
this case, because the district court had dismissed this part of Lindell’s claim at the
screening stage and thus the defendants had not responded at all. After our remand to
the district court, the defendants filed a motion to dismiss alleging that Lindell failed
to exhaust his administrative remedies in the manner we have just described. The
district court granted the defendants’ motion. It noted that Wis. Admin. Code DOC §
310.12(3) permitted Lindell to consider his complaint dismissed 23 days after he
received the ICE’s acknowledgment of receipt of his complaint. The court rejected
Lindell’s argument that he wanted to file “an informed appeal” and therefore he was
entitled to wait for the appropriate reviewing authority’s decision. That option does not
appear in the rules. In addition, the court rejected his argument that his failure to file
a timely appeal was excused because Wis. Admin. Code § DOC 310.13(3) gives the CCE
No. 04-4288                                                                         Page 4


the discretionary power to accept late appeals that are filed 5 days after the receipt of
the decision. The district court was correct. Lindell’s argument about § DOC 310.13(3)
implies that the prison authorities have a duty to exercise their discretion in a way
favorable to late appeals, and that is not the law: they are entitled to insist that inmates
follow reasonable rules.
         We review a district court’s grant of a motion to dismiss de novo. Witzke v. Femal,
376 F.3d 744, 749 (7th Cir. 2004). While a prisoner must exhaust all administrative
remedies before bringing a civil rights suit, “failure to exhaust is an affirmative defense
that the defendants have the burden of pleading and proving.” Dale v. Lappin, 376 F.3d
652, 655 (7th Cir. 2004). Normally, the district court should not grant a motion to
dismiss under Fed. R. Civ. P. 12(b)(6) based on an affirmative defense without allowing
the non-moving party an opportunity to respond. In this case, however, we find that the
court’s decision to resolve this issue at the 12(b)(6) stage was harmless error, because
it is clear that Lindell did not exhaust his remedies. See Loeb Indus. v. Sumitomo Corp.,
306 F.3d 469, 479 (7th Cir. 2002) (finding harmless error when the district court failed
to convert a motion to dismiss into a motion for summary judgment when it relied on
information outside the pleadings in reaching its decision). Given the structure of the
DOC rules, there are no additional facts that would help us determine whether Lindell
exhausted his remedies. A remand to convert this claim into a motion for summary
judgment would therefore be pointless.
       Lindell knew about the grievance procedures, and thus we must assume that he
knew that he should have moved forward with his appeal to the CCE 23 days after he
received the acknowledgment of receipt of complaint from the ICE. See § DOC 310.12(3)
(2001). In concrete terms, this means that Lindell could have filed his appeal with the
CCE on August 1, 2001. Requiring inmates and prison officials to follow grievance
procedures serves the purposes of the Wisconsin legislature and the PLRA. Here, the
DOC had procedures in place that were designed to prevent grievances from languishing
for long periods of time, even if administrators from time to time failed to take prompt
action or there was a glitch in the receipt of inmate mail. Because the district court did
not err in finding that Lindell failed to exhaust his administrative remedies set forth
in the Wis. Admin. Code, we affirm the decision of the district court dismissing Lindell’s
First Amendment claim.
                                            II
      In our remand order, we instructed the district court to redraft its injunction to
comply with the PLRA by limiting its scope to Lindell and allowing the prison
authorities to place reasonable limits on the number of items Lindell could possess. In
an order dated August 23, 2004, the district court responded with the following revised
injunction:
       Defendants are ENJOINED from enforcing their publisher’s [sic] only rule
No. 04-4288                                                                       Page 5


      to the extent that it prohibits plaintiff Lindell from receiving a reasonable
      number of photocopies of clippings that are from published sources and in
      a reasonable format.
On September 1, 2004, Lindell moved to amend the injunction. The district court denied
his motion, finding that his First Amendment rights were not infringed “by a rule
limiting the volume of photocopies he received or by a rule requiring clippings to be
photocopied.” In addition, the court found that the redrafted injunction did not need to
be modified to allow Lindell to receive photocopies of material from the Internet.
        Lindell contends that he should have been able to provide the court with his view
of how the injunction should be redrafted. In addition, he argues that the injunction
fails adequately to define “published sources,” “reasonable number,” or “reasonable
format.” Finally, he contends that the injunction does not adequately protect his First
Amendment rights because it does not allow him to possess the actual clippings.
      We review a district court’s grant of an injunction for abuse of discretion. Dupuy
v. Samuels, 397 F.3d 493, 502 (7th Cir. 2005). In doing so, we review the district court’s
findings of fact for clear error and its conclusions of law de novo. Id. at 503. In our
previous decision, we instructed the district court to modify the injunction to conform
with the provision of the PLRA requiring that:
      [p]rospective relief in any civil action with respect to prison conditions
      shall extend no further than necessary to correct the violation of the
      Federal right of a particular plaintiff or plaintiffs. The court shall not
      grant or approve any prospective relief unless the court finds that such
      relief is narrowly drawn, extends no further than necessary to correct the
      violation of the Federal right, and is the least intrusive means necessary
      to correct the violation of the Federal right. The court shall give
      substantial weight to any adverse impact on public safety or the operation
      of a criminal justice system caused by the relief.
18 U.S.C. § 3626(a)(1)(A). In redrafting the injunction, the district court considered the
relevant law and our instructions and limited the injunction appropriately. The revised
injunction does not violate Lindell’s due process rights, nor did the procedure the court
used. Lindell had already had an opportunity to submit briefs presenting his position
on the scope of the injunction to the district court. All that was required after our
remand was for the court to limit the scope of the injunction as we instructed. The
court’s redrafted injunction properly addressed each of our concerns; nothing more is
required.
                                           III
       For these reasons, we AFFIRM the judgment of the district court in all respects.
