                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1



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

                               Submitted May 11, 2020 *
                                Decided May 11, 2020

                                        Before

                      DIANE P. WOOD, Chief Judge

                      MICHAEL B. BRENNAN, Circuit Judge

                      MICHAEL Y. SCUDDER, Circuit Judge


No. 19-2319

JOHN D. HAYWOOD,                                 Appeal from the United States District
     Plaintiff-Appellant,                        Court for the Southern District of
                                                 Illinois.
      v.
                                                 No. 3:18-CV-00525-NJR-GCS
RANDALL BAYLOR,
    Defendant-Appellee.                          Nancy J. Rosenstengel,
                                                 Chief Judge.

                                      ORDER

       John Haywood, a prisoner at Lawrence Correctional Center in Illinois, filed a
grievance with Illinois’s Administrative Review Board, without first using the grievance
procedures at his prison. After the Board advised Haywood to follow the standard
grievance procedure at Lawrence for his complaint about an officer there, he brought
this suit. Ruling that Haywood had failed to exhaust his remedies as required, the



      *
        We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 19-2319                                                                          Page 2

district court entered summary judgment against him. Haywood did not follow the
Board’s instructions on proper exhaustion, so we affirm.

       In this suit, Haywood complains that he was treated inhumanely during his
transfer from Menard Correctional Center to Lawrence in March 2016. Haywood
requires wheelchair assistance because he is paralyzed from the waist down and had
part of his left foot amputated. During his transfer, Haywood had to change buses at
Logan Correctional Center. Haywood alleges that Randall Baylor, a correctional officer
from Lawrence, refused to help, or to allow anyone else to help, Haywood board the
new bus. As a result, Haywood had to crawl through mud and rain to get on the bus.

        Shortly after arriving at Lawrence, Haywood filed a grievance with the Board.
Prisoners may send grievances directly to the Board only in limited circumstances,
including (as relevant to this case) when the grievance involves “issues from another
facility.” 20 ILL. ADMIN. CODE § 504.870(a). All other grievances must be filed at the
inmate’s assigned facility within 60 days of the incident and can be appealed to the
Board only after addressed there by a counselor, a grievance officer, and the warden.
20 ILL. ADMIN. CODE §§ 504.810(a), 504.850(a); see also Pyles v. Nwaobasi, 829 F.3d 860, 864
(7th Cir. 2016). Haywood’s grievance described two incidents. First, it described how
Baylor, the officer from his current facility, Lawrence, allegedly forced him to crawl
through the mud during the bus change at Logan. Second, he asserted mistreatment by
unnamed staff from Menard.

        The Board responded a month later. It said that “no review could be done” for
the portion of Haywood’s grievance that pertained to “issues” from Lawrence: “As
Offender Haywood is housed at Lawrence, all issues with Lawrence required Haywood
to” file a grievance there, beginning with a local counselor, then a grievance officer, and
then the warden. It “encouraged” Haywood to “review and follow” this procedure,
which Haywood still had time to do. Next, “based on a total review of all available
information,” the Board “denied” the part of Haywood’s grievance about Menard staff
because Haywood did not identify anyone by name.

        Haywood then sued under 42 U.S.C. § 1983. The district court dismissed his
claims about the unnamed Menard staff (a decision he does not challenge on appeal),
but it allowed him to proceed on an Eighth Amendment claim against Baylor. Baylor
moved for summary judgment, contending that Haywood had failed to exhaust his
administrative remedies. At a hearing before a magistrate judge, Haywood admitted
that he did not refile his grievance with prison officials at Lawrence after the Board
advised him to do so, even though his 60 days to file a grievance had not yet expired.
No. 19-2319                                                                        Page 3

The magistrate judge recommended granting summary judgment to Baylor, reasoning
that, even though the alleged wrongdoing occurred at Logan, the grievance rules called
for Haywood to process his grievance at Lawrence, where Baylor worked. Haywood
objected to the recommendation. He argued that the Board’s decision was ambiguous
and did not acknowledge that the alleged incident occurred at Logan. The district court
rejected these arguments as previously unraised, adopted the recommendation, granted
summary judgment to Baylor, and dismissed the case with prejudice.

        Haywood timely appealed and, on the same day, also moved to alter the
judgment under Rule 59(e) of the Federal Rules of Civil Procedure. In his motion,
Haywood argued that the district court had violated his constitutional right to access
the courts by refusing to entertain his arguments. He also argued that the Prison
Litigation Reform Act’s exhaustion requirement was unconstitutional. The district court
denied this motion, ruling that it had properly reviewed the magistrate judge’s
recommendation and that Haywood had waived any challenge to the Act by failing to
raise it earlier. Once the court ruled, Haywood’s notice of appeal became effective and
secured jurisdiction in this court. See FED. R. APP. P. 4(a)(4)(A)(iv), 4(a)(4)(B)(i).

       On appeal, Haywood first contends that the district court erred in ruling that he
did not exhaust his administrative remedies. In Haywood’s view, because the incident
that he complained of occurred at Logan, he properly exhausted by presenting his
grievance to the Board directly, rather than to staff at Lawrence. We review the district
court’s factual findings on exhaustion for clear error and its legal rulings de novo.
Ramirez v. Young, 906 F.3d 530, 533 (7th Cir. 2018).

        Haywood did not exhaust. Inmates may not sue about prison conditions under
§ 1983 “until such administrative remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). To exhaust, a prisoner must “file complaints and appeals in the place, and at
the time, the prison’s administrative rules require.” Burrel v. Powers, 431 F.3d 282, 285
(7th Cir. 2005). An Illinois inmate may file a grievance directly with the Board when it
“involves ... issues from another facility.” 20 ILL. ADMIN. CODE § 504.870(a). We may
assume, as Haywood argues, that this rule leaves open the theoretical possibility that an
issue “involves ... another facility” if an officer from the inmate’s current facility
mistreats the inmate en route to that facility. But exhaustion procedures “need not be
sufficiently ‘plain’ as to preclude any reasonable mistake or debate with respect to their
meaning.” Ross v. Blake, 136 S. Ct. 1850, 1859 (2016). So this ambiguity alone does not
invalidate it. And the Board told Haywood, before his time to complain had expired,
that this rule meant that, because the officer involved worked at Haywood’s current
No. 19-2319                                                                            Page 4

facility, he needed to file his grievance there first. Nonetheless, Haywood refused to do
so. “When an administrative process is susceptible of multiple reasonable
interpretations, Congress has determined that the inmate should err on the side of
exhaustion.” Id. Because refiling was available to him, Haywood’s failure to exhaust is
not excusable. See Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006) (administrative
procedure not “unavailable” when the prisoner could not obtain relief because he did
not comply with procedural rules).

        Our conclusion is consistent with our recent decision in Williams v. Wexford
Health Sources, Inc., --- F.3d ----, 2020 WL 2078986 (7th Cir. Apr. 30, 2020). In that case, an
inmate who faced the prospect of imminent blindness from an untreated eye condition
filed his grievance directly with his prison’s warden. Id. at *1. He thought that he need
not start his grievance with his counselor because the rules allowed inmates to go
directly to the warden when they reasonably perceived an emergency. Id. Deeming the
threat of blindness not an emergency, the warden required that the inmate start over
with his counselor. Id. at *2. The inmate appealed to the Board, but the Board refused to
consider the merits of his complaint because the inmate had not followed the standard
grievance procedure. Id. We held that the warden and the Board had essentially, and
impermissibly, created a new procedure to fill the void in the rules about how an
inmate should respond to a decision that a grievance did not involve an emergency. Id.
at *4. But here, the Board did not create a new rule. Rather, it reasonably construed an
existing rule, concluding that a grievance involves “issues from another facility” only
when the officer whom the inmate has accused is from another facility. And the Board
did so in a manner that allowed Haywood time to exhaust his claim without risk to his
health, as he faced no emergency.

        Haywood argues, in the alternative, that his failure to exhaust should be excused
because he could not reasonably have known that the Board considered his grievance
about Baylor unexhausted. He observes that the Board said that it “denied” (rather than
refused to review) his grievance “based on a total review of all available information.”
This is the same argument that Haywood attempted to raise for the first time in his
objections to the magistrate’s recommendation, but that was too late. See United States
v. Melgar, 227 F.3d 1038, 1040 (7th Cir. 2000) (arguments not made before a magistrate
judge are waived). In any event, the argument does not hold water. Haywood is
conflating two paragraphs in the Board’s decision. The statement on which Haywood
focuses came in the paragraph of the decision that resolved his complaints about
Menard. The preceding paragraph explained that “no review could be done” with
No. 19-2319                                                                         Page 5

regard to Haywood’s complaints about Lawrence and how Haywood could properly
obtain review of that complaint. This paragraph was not ambiguous.

        We quickly address two final matters. First, Haywood contends that the district
court improperly ignored his argument that the PLRA’s exhaustion requirement is an
unconstitutional denial of his First Amendment right to access the courts. But Haywood
failed to raise this argument, even though he could have, before he moved to alter the
judgment, so the district court could refuse to entertain it. Cehovic-Dixneuf v. Wong,
895 F.3d 927, 932 (7th Cir. 2018). At any rate, Haywood has reasonable access to the
courts; the PLRA specifies how to access them. See In re Chapman, 328 F.3d 903, 905
(7th Cir. 2003) (“[T]he right of access to the federal courts is not absolute.”). Second, as
Baylor correctly points out, we must modify the district court’s judgment because,
having decided that Haywood did not exhaust, the district court should have dismissed
Haywood’s claim without prejudice. See Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004).

       We have considered Haywood’s other arguments, and none has merit. Therefore,
the judgment, MODIFIED to be without prejudice, is AFFIRMED.
