*

 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).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 21, 2005*

Decided December 5, 2005

Before

Hon. KENNETH F. RIPPLE, Circuit Judge

 Hon. DANIEL A. MANION, Circuit Judge

 Hon. DIANE P. WOOD, Circuit Judge

No. 05-1965

VICTOR L. EDMONDSON,

Plaintiff-Appellant,

v.

GARY R. McCAUGHTRY, Warden,

STEVE SCHUELLER, Captain,

PETER ROE, et al.,

Defendants-Appellees.

Appeal from the United States

District Court for the Eastern

District of Wisconsin.

No. 03 C 972

William C. Griesbach, 

Judge.

O R D E R

Wisconsin inmate Victor Edmondson brought suit under 42 U.S.C. §§ 1983

and 1985, claiming that his prison warden, the Secretary of the Wisconsin

Department of Corrections (“DOC”) and some members of the prison staff violated

his rights under the First, Eighth, and Fourteenth Amendments. Mr. Edmondson

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 05-1965 Page 2

alleged that the defendants segregated him in retaliation for his “legal activities,”

violated his due process rights when they kept him in segregation, discriminated

against him with respect to “placement and programming” because of his race, and

maintained his cell in conditions that violated his right to be free from cruel and

unusual punishment. The district court granted summary judgment to the

defendants on the ground that Mr. Edmondson had failed to exhaust his

administrative remedies as required by the Prison Litigation Reform Act (“PLRA”),

see 42 U.S.C. § 1997e(a). The court also denied Mr. Edmondson’s motion to

reconsider the decision. We affirm.

Mr. Edmondson was placed in Administrative Confinement (segregation)

shortly after his transfer to Waupun Correctional Institution. The staff believed,

based on his record, that his “continual assaultive and disruptive behavior” posed a

danger to other inmates and staff. During the time he was in segregation, Mr.

Edmondson filed three formal complaints using the Inmate Complaint Review

System. One alleged that his legal documents had been read and “mixed up”

during a search for contraband; another protested the staff’s refusal to permit him

to have a typewriter (prison policy prohibited possession of a typewriter by any

inmate in Administrative Confinement); and a third challenged his placement in

segregation. This third complaint alleged that: (1) Mr. Edmondson’s segregation

was unjustified because he had committed no recent infractions of prison rules; (2)

the review committee wrongly credited a conduct report that had been dismissed;

and (3) the committee’s failure to contact both the security director and the gang

coordinator of the institution where he was previously incarcerated violated Mr.

Edmondson’s right to have witnesses in his defense. Mr. Edmondson claimed that

these officials would have confirmed that he had changed his ways and that his old

record no longer accurately predicted his future behavior. Mr. Edmondson did not

appeal the denials of his first two complaints as required under Wisconsin’s review

procedures. See Wis. Admin. Code DOC §§ 310.07-310.14. He appealed the denial

of the third, but that appeal was dismissed as untimely, and he did not challenge

the ruling. Instead, a few months later, he filed this case in the district court.

At summary judgment, Mr. Edmondson argued that, contrary to the

defendants’ assertions, he had exhausted the third complaint because the dismissal

was signed by someone in the office of the DOC Secretary, who has the final word

in administrative appeals. See Wis. Admin. Code DOC § 310.14. Mr. Edmondson

therefore maintained that he had pursued every recourse. The district court held,

however, that his failure to make a timely filing amounted to a failure to complete

the administrative process and thus a failure to exhaust. In his motion for

reconsideration, Mr. Edmondson argued that the district court had “overlooked” his

attempts to resolve his complaints through an “informal channel” and added that

he believed pursuing further appeals using the formal complaint procedures would

have been futile. The district court denied his motion after concluding that the

cases he cited did not support his arguments.
No. 05-1965 Page 3

Before us, Mr. Edmondson does not press the arguments he raised earlier. 

Rather, he proposes that his failure to exhaust should not be held against him

because prison officials prevented him from timely appealing the denial of his third

complaint. He contends that a prison officer supplied him with the wrong form for

filing his appeal, which caused it to be rejected, and that the warden “held” the

defective grievance for 15 days until the limitations period on his appeal had

expired. 

If Mr. Edmondson had been able to show that the appeal process was

frustrated by prison administrators, further remedies would be “unavailable”

within the meaning of § 1997e(a), and he would not be required to exhaust. Dale v.

Lappin, 376 F.3d 652, 656 (7th Cir. 2004). However, he never raised this argument

in the district court, and it is therefore waived. See Smith v. Zachary, 255 F.3d 446,

452 (7th Cir. 2001); Massey v. Helman, 196 F.3d 727, 735 n.4 (7th Cir. 2000). 

Moreover, even if we accepted his claim that he was blameless for the

tardiness of his administrative appeal, there still would be a barrier to his suit. As

the defendants point out, the complaint procedures prescribe a remedy for the

plaintiff whose submission is untimely through no fault of his own, see Wis. Admin.

Code DOC § 310.13(2), and Mr. Edmondson failed to pursue that relief. Because

the purpose of the exhaustion rule is to allow prison officials the opportunity to

address minor procedural problems in the first instance, we have held that a

prisoner fails to exhaust his remedies if he does not take advantage of a procedure

for reconsidering untimely filings. Cannon v. Washington, 418 F.3d 714, 718-19

(7th Cir. 2005) (per curiam). Mr. Edmondson gives no reason for not raising the

claim that he raises here before the DOC, other than his belief that any further

appeal would be “fruitless.” It is well-established, however, that futility is no

excuse for failing to exhaust. Booth v. Churner, 532 U.S. 731, 741 n.6 (2001);

Thornton v. Snyder, 2005 WL 2577714, at *2 (7th Cir. Nov. 3, 2005).

We also note, for the sake of completeness, that the district court did not err

in rejecting Mr. Edmondson’s earlier arguments. His contention at summary

judgment that he had exhausted the third complaint by filing a belated appeal with

the DOC Secretary is meritless because a grievance “rejected solely on the basis of

untimeliness” does not satisfy the PLRA’s exhaustion requirement. Conyers v.

Abitz, 416 F.3d 580, 584 (7th Cir. 2005). See also Pozo v. McCaughtry, 286 F.3d

1022, 1025 (7th Cir. 2002). In order to exhaust, a prisoner “must take all steps

prescribed by the prison’s grievance system.” Ford v. Johnson, 362 F.3d 395, 397

(7th Cir. 2001) (emphasis added). Furthermore, Mr. Edmondson’s argument that

the DOC’s complaint procedures permit a plaintiff to substitute “informal” for

formal exhaustion procedures is simply incorrect. The rule that he cites as his

authority, Wis. Admin. Code DOC § 310.09(4), makes no such suggestion. Rather,

it provides that “[p]rior to accepting the complaint, the ICE [Inmate Complaint

Examiner] may direct the inmate to attempt to resolve the issue.” Id. This
No. 05-1965 Page 4

provision does not purport to create any right for the inmate but establishes that

informal procedures may be used at the discretion of the ICE, and it implies that

any such choice will be made before the complaint reaches the appellate level. 

AFFIRMED