In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-3531

KARAMO B. KABA,

Plaintiff-Appellant,

v.

E.A. STEPP, MICKAL E. LAIRD,

DAVE BENSON, and JOSEPH YONKMAN,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 01-150-GPM—G. Patrick Murphy, Chief Judge.

____________

ARGUED NOVEMBER 30, 2005—DECIDED AUGUST 16, 2006

____________

Before ROVNER, WOOD, and EVANS, Circuit Judges.

WOOD, Circuit Judge. Karamo Kaba served time as an

inmate in the federal prison in Marion, Illinois. He contends

that during his incarceration his case manager, Mickal E.

Laird, denied him grievance forms, threatened him, and

solicited other inmates to attack him in retaliation for filing

grievances, and that the other named officials knew about

and did nothing to stop Laird’s activities until after Kaba

was actually beaten in his cell on February 23, 2001. He

contends these actions violated the Eighth Amendment.

The district court granted summary judgment for the

prison officials, finding that Kaba failed to exhaust his
2 No. 03-3531

administrative remedies as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). Because

we find there are disputed issues of fact about whether

administrative remedies were “available” to Kaba, we

reverse and remand for proceedings consistent with this

opinion.

I

As a preliminary matter, although no party addressed

this issue, we note that the district court after granting

summary judgment dismissed Kaba’s case without prejudice. Normally, a dismissal without prejudice is not a

final order for purposes of appellate jurisdiction under 28

U.S.C. § 1291. See Hoskins v. Poelstra, 320 F.3d 761, 763

(7th Cir. 2003). “We have even gone so far as to state that

dismissals without prejudice are ‘canonically non-final.’ ”

Glaus v. Anderson, 408 F.3d 382, 385 (7th Cir. 2005)

(quoting Am. States Ins. Co. v. Capital Assoc. of Jackson

County, Inc., 392 F.3d 939, 940 (7th Cir. 2004)). But “if

an amendment would be unavailing, then the case is dead

in the district court and may proceed to the next tier.”

Hoskins, 320 F.3d at 763. See Glaus, 408 F.3d at 386

(“There is an exception if there is no amendment a plaintiff could reasonably be expected to offer to save the complaint, or if a new suit would be barred by the statute of

limitations.”) (quotation altered); Dixon v. Page, 291 F.3d

485, 488 (7th Cir. 2002) (holding that where an inmate has

been released, the prison grievance system is no longer available for exhaustion and the defect in the complaint cannot be cured, and therefore the dismissal is final);

Dolis v. Chambers, 2006 WL 2042536, at *1 (7th Cir. July

24, 2006).

In this case, as in Dixon, Kaba was released from prison,

and therefore the dismissal without prejudice for failure to

exhaust is effectively a final order because no amend-
No. 03-3531 3

ment could resolve the problem. (Even though exhaustion

would no longer be a problem if he were to re-file, because

that rule applies only to prisoners, he would in all likelihood face the same kind of statute of limitations problems

that the inmate in Dixon confronted.) Even if Kaba were

still incarcerated, it would be impossible for him to exhaust

at this late date. The prison grievance system has a specific

set of procedures and deadlines, and any deadline for filing

and/or appealing a grievance for events that occurred in

2000 and 2001 is long passed. See Woodford v. Ngo, 126 S.

Ct. 2378 (2006). Therefore, the dismissal is in effect final

and this court may consider Kaba’s appeal.

Kaba filed his initial and amended pro se complaints

citing both Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), and 42 U.S.C.

§ 1983 (plainly not applicable here) against four officials at

the federal prison in Marion, Illinois, in both their individual and official capacities. The magistrate judge dismissed

the official capacity claims because he found that the

substance of the complaint was a Bivens action alleging

Eighth Amendment claims and did not include any claim

cognizable under the Federal Tort Claims Act (FTCA). The

prison officials filed a motion to dismiss, which the district

court converted to a motion for summary judgment and

granted. The district court also refused to permit Kaba to

amend his complaint to re-assert his FTCA claim against

the United States, which would be the proper defendant for

tort claims involving acts of the named officials within the

scope of their employment. See 28 U.S.C. § 2679(d).

As we review the district court’s grant of summary

judgment, it is important to remember that exhaustion

is an affirmative defense, and consequently the burden of

proof is on the prison officials. See Dole v. Chandler, 438

F.3d 804, 809 (7th Cir. 2006). Furthermore, review of a

district court’s exhaustion finding is de novo. Id. As with

any review of a case upon summary judgment, we draw all
4 No. 03-3531

reasonable inferences in the light most favorable to the nonmoving party. See Jenkins v. Yager, 444 F.3d 916, 921 (7th

Cir. 2006). Furthermore, as a pro se litigant, Kaba

is entitled to have his complaint be liberally construed.

See Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006).

Finally, though we have warned against this practice

repeatedly in our opinions, the respondents in this case fall

into the trap of trying to discredit Kaba’s affidavits as “selfserving.” As we have said before, “[m]ost affidavits are

self-serving, as is most testimony, and this does not permit

a district judge to denigrate a plaintiff’s evidence when

deciding whether a material dispute requires trial.” Wilson

v. McRae’s, Inc., 413 F.3d 692, 694 (7th Cir. 2005). See

Dalton v. Battaglia, 402 F.3d 729, 735 (7th Cir. 2005) (“We

have repeatedly stated that the record may include

a so-called ‘self-serving’ affidavit provided that it is

based on personal knowledge.”); Payne v. Pauley, 337 F.3d

767, 772-73 (7th Cir. 2003). Sworn affidavits, particularly

those that are detailed, specific, and based on personal

knowledge are “competent evidence to rebut [a] motion for

summary judgment.” Dale v. Lappin, 376 F.3d 652, 655 (7th

Cir. 2004) (per curiam).

II

With the standard of review in mind, we turn to the

particulars of Kaba’s case. Kaba was incarcerated in the

federal prison in Marion, Illinois, from November 2000

through March 2001, when he was transferred. The Marion

facility, like all federal prisons, has a multi-step administrative grievance process for inmate complaints. First, an

inmate must attempt to resolve his complaint informally,

although that step may be waived at the warden’s discretion if the “inmate demonstrates an acceptable reason for

bypassing such informal resolution.” 28 C.F.R. § 542.13(a),

(b). If the informal route fails, the inmate has 20 days from
No. 03-3531 5

the complained-of event to file a written Administrative

Remedy Request on the appropriate form to the warden. 28

C.F.R. § 542.14(a). Where the inmate can demonstrate a

“valid reason for delay,” an extension of time may be

warranted. 28 C.F.R. § 542.14(b). To file the grievance, the

inmate must first obtain the appropriate grievance form

from the institution staff, “ordinarily, the correctional

counselor.” 28 C.F.R. § 542.14(c)(1). “If the inmate reasonably believes the issue is sensitive and the inmate’s safety

or well-being would be placed in danger if the Request

became known at the institution, the inmate may submit

the Request directly to the appropriate Regional Director.”

28 C.F.R. § 542.14(d)(1). Finally, if not satisfied with the

resolution of the grievance, the inmate may file a written

appeal to the Bureau of Prisons’ Regional Director and, if

still not satisfied, then to its General Counsel. 28 C.F.R.

§ 542.15(a). Each of these steps has a prescribed deadline

and a particular grievance form outlined in the Code of

Federal Regulations, but we need not get into these details because Kaba concedes that he did not pursue the

“prison grievance procedures up to the top level.” Carroll v.

Yates, 362 F.3d 984, 984 (7th Cir. 2004). At issue before us

is why.

Kaba contends that these administrative remedies were

not “available” to him because his life was threatened.

Kaba’s evidence includes three sworn affidavits proffering his own testimony, a prison-administered lie detector

test that indicates that he was truthful in the first affidavit,

the affidavit of another inmate, and the documentation by

a doctor of Kaba’s reported fears about being transferred

back to Marion. Together this evidence details a series of

events—including the withholding of grievance forms, direct

threats, and an inmate assault—from about November 2000

to February 2001 that Kaba contends made it impossible for

him to file grievances about the administrative remedy

system itself and the complained-of retaliatory actions by
6 No. 03-3531

Laird and the other officials. Kaba’s affidavits are specific

and detailed and, to the extent that they are based on his

personal knowledge, they are admissible as evidence, just

as the prison officials’ own affidavits are.

Taking this evidence in the light most favorable to Kaba,

it shows that Laird threatened Kaba repeatedly. The first

time Kaba asked Laird for a grievance form, Laird not

only refused to give him the form but also seized his tennis shoes; when Kaba asked an associate warden about

his shoes they were returned. When Laird learned of the

conversation with the associate warden, he visited Kaba’s

cell and told him, “I told you if you go to the Warden or

Associate Warden, I will see to it that you will never get

a transfer.” A few days later, Laird approached Kaba as

he was leaving the dining area and told him that the

associate warden “has left, now you will never get transferred, I will keep locking you up or whatever I need to do.”

In addition, Laird told Kaba on another occasion, “You don’t

talk to the Warden or Associate Warden and you don’t ask

for [grievance forms].” Laird told him that he had to get

grievance forms from the prison paralegal, although no

paralegal was employed at Marion.

Two different inmates, James Barnett and Homer

Richards, told Kaba that Laird had talked to them about

Kaba. Barnett, the other inmate who submitted a sworn

affidavit, told Kaba that Laird had approached him three

times (although only two are mentioned in the undated

affidavit taken during the prison’s internal investigation).

During the first two encounters, Laird told Barnett that

Kaba was “not a good person” because he was filing too

many grievances, that Laird wanted Kaba “out of the unit,”

and that Kaba “need[ed] to be beat up or assaulted.”

According to Kaba, the third incident occurred after Kaba

had complained to the warden and an investigation had

started. Barnett told Kaba that Laird was “applying pressure” to get Barnett to stab Kaba because he had com-
No. 03-3531 7

plained to the warden and cooperated with the investigation, and Laird had promised extra phone calls, food, and

even possibly a transfer to induce Barnett to stab him.

Richards warned Kaba to “leave Laird alone,” because

“Laird will retaliate against everyone,” and Laird had

told Richards to get Kaba “off his back.” As part of the

internal prison investigation conducted prior to the beating,

Kaba passed a polygraph examination in which he was

asked about the truthfulness of his first affidavit, which

was signed on January 12, 2001.

Kaba detailed how he attempted to deal with the situation by specifically informing Warden Stepp and Captain

Benson of the threats. In December 2000, Kaba spoke

to Stepp about the issue and was assured that Stepp would

take care of it. When Kaba tried to bring this to the attention of the new associate warden, “Captain [Benson]

stepped up and told me that if I keep filing paperwork,

I would never move out of Marion.” Kaba also indicated that

Benson told him that “if you file [an] administrative remedy

I will ship you to [Puerto Rico]. You will get beat up with [a]

stick.” On January 12, 2001, Yonkman, the agent in charge

of the prison’s internal investigation, visited Kaba, and

Kaba again raised the issue of the threat, but “nothing was

done to protect me . . . until I was assaulted.” Stepp also

told Kaba not to file a grievance about Laird’s actions or

else Stepp would not send anyone to investigate.

Just as Kaba feared, he was attacked in his cell severely

enough to leave him unconscious from blunt trauma to

the head, which required a brief hospitalization. Some of

Kaba’s legal materials were confiscated the day of his

assault. Following his transfer to the federal penitentiary

in Springfield, Missouri, which was done to allow him to

obtain medical treatment in the aftermath of the attack,

Kaba’s doctor documented on April 18, 2001, that Kaba told

him that he feared being returned to Marion because a

correctional officer was paying other inmates to assault

him.
8 No. 03-3531

Kaba was no stranger to the grievance procedure. During

his time at Marion, he had filed quite a few, including one

on November 8, 2000, about the inmate financial responsibility program, one on November 29, 2000, on the same

program, and one on February 16, 2001, dealing with the

qualifications of the staff. In addition, after the beating, on

March 6, 2001, Kaba filed an FTCA claim with the Bureau

of Prisons at the U.S. Department of Justice. (That claim

was officially denied on December 6, 2001; the letter Kaba

received informing him of this action also notified him that

he had the right to sue within six months of the date of the

letter.) On March 12, 2001, long before he learned the result

of his FTCA complaint, he filed this suit in federal court. He

was transferred from the Marion prison on March 21, 2001.

He filed additional grievances beginning in May 2001,

although none appears to have focused on the previous

denial of administrative remedies or threats and attack at

the Marion prison.

Without grappling with Kaba’s proffered evidence, the

district court found that Kaba could have filed grievances

about Laird for the three months prior to his beating, and

that he did in fact file grievances during this period although none addressed the retaliation. In addition, the

district court noted that Kaba filed this lawsuit a mere 17

days after that beating, while he still had three days

left to file a formal grievance under 28 C.F.R. § 542.14(a).

While the court rejected an absolute rule that filing a

lawsuit before the grievance period had expired necessarily

constituted a failure to exhaust, it was persuaded that Kaba

could have exhausted but opted to file a lawsuit instead. It

noted that Kaba was physically able to file the proper

paperwork and that he could have filed a grievance directly

with the Regional Director if he felt that he remained in

jeopardy. See 28 C.F.R. § 542.14(d)(1).
No. 03-3531 9

III

The Prison Litigation Reform Act (PLRA) 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.

42 U.S.C. § 1997e(a) (emphasis added).

As the Supreme Court recently said in Ngo, “A centerpiece of the PLRA’s effort ‘to reduce the quantity . . . of

prisoner suits’ is an ‘invigorated’ exhaustion provision,

§ 1997e(a).” 126 S. Ct. at 2382 (quoting Porter v. Nussle, 534

U.S. 516, 524 (2002)). Prisoners must exhaust even where

the relief sought cannot be granted in the administrative

process. Ngo, 126 S. Ct. at 2382-83. “The PLRA attempts to

eliminate unwarranted federal-court interference with the

administration of prisons, and thus seeks to ‘affor[d]

corrections officials time and opportunity to address

complaints internally before allowing the initiation of a

federal case.’ ” Id. at 2387 (quoting Nussle, 534 U.S. at 525).

Nonetheless, the exhaustion requirement is not jurisdictional. Ngo, 126 S. Ct. at 2392. If administrative remedies

are not “available” to an inmate, then the inmate cannot be

required to exhaust. Thus, “[c]orrections officials concerned

about maintaining order in their institutions have a reason

for creating and retaining grievance systems that provide—and that are perceived as providing—a meaningful

opportunity for prisoners to raise meritorious grievances.”

Id.

Because the PLRA does not say when a process is “available,” the court must apply the ordinary meaning of the

term. See Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187

(1995). In Ngo, the Supreme Court rejected the idea that,

for example, a process becomes unavailable because the

prisoner does not comply with the procedural rules
10 No. 03-3531

and therefore cannot obtain relief, and required courts to

look at the reason why the administrative process is

unavailable. 126 S. Ct. at 2387, 2392-93. Thus, when the

prisoner causes the unavailability of the grievance process

by simply not filing a grievance in a timely manner, the

process is not unavailable but rather forfeited. On the other

hand, when prison officials prevent inmates from using the

administrative process detailed in the Code of Federal

Regulations, the process that exists on paper becomes

unavailable in reality. Thus, as we held in Dale, when

prison officials fail to provide inmates with the

forms necessary to file an administrative grievance, administrative remedies are not “available.” 376 F.3d at 656. The

Third Circuit reached a similar conclusion in Brown v.

Croak, 312 F.3d 109, 111-12 (3d Cir. 2002), which held that

administrative remedies were unavailable where the prison

officials erroneously told the prisoner that he must wait

until the investigation was complete before filing a grievance. See also Miller v. Norris, 247 F.3d 736, 740 (8th Cir.

2001). Most recently, we observed, “Prison officials may not

take unfair advantage of the exhaustion requirement, [ ]

and a remedy becomes ‘unavailable’ if prison employees do

not respond to a properly filed grievance or otherwise use

affirmative misconduct to prevent a prisoner from exhausting.” Dole v. Chandler, 438 F.3d at 809.

While we have not laid out a particular test for deciding

when administrative remedies are unavailable, the Second

Circuit has opted for an objective test, under which the

court looks at whether “a similarly situated individual

of ordinary firmness” would have deemed the grievance

procedures to be available.” Hemphill v. New York, 380 F.3d

680, 688 (2d Cir. 2004). It offered the following explanation:

[I]t should be pointed out that threats or other intimidation by prison officials may well deter a prisoner of

“ordinary firmness” from filing an internal grievance,
No. 03-3531 11

but not from appealing directly to individuals in positions of greater authority within the prison system, or

to external structures of authority such as state or

federal courts. This may be so, if for no other reason,

because seeking a criminal investigation or filing a civil

rights complaint may enable an inmate to draw outside

attention to his complaints, thereby neutralizing

threatened retaliatory conduct from prison employees.

Id.

In Dale, the inmate alleged that the prison officials had

failed to protect him from an attack by other inmates; when

he attempted to file a grievance, he was told that the

employees did not have grievance forms and instead was

given blank sheets of paper. 376 F.3d at 654-55. During the

grievance period, the inmate was transferred, and the guard

at the new prison told him that grievance forms could be

obtained only from the unit team or if the warden permitted

it. Given the timing of his transfer, he was unable to file a

grievance within the appropriate period. Id. at 655. The

district court rejected Dale’s evidence, discounting his

affidavit as “bald assertions” even though Dale had provided detailed information about the specific form he had

requested, the prison employees from whom he requested

forms, and the receipt of blank paper instead of forms. Id.

at 655-56. This court observed:

If prison employees refuse to provide inmates with

those forms when requested, it is difficult to understand

how the inmate has any available remedies. Just as

prison employees cannot exploit the exhaustion requirement by not responding to grievances, see Lewis v.

Washington, 300 F.3d 829, 833 (7th Cir. 2002), they

should not be rewarded for preventing an inmate access

to an administrative remedy, see Mitchell v. Horn, 318

F.3d 523, 529 (3d Cir. 2003) (holding that district court

erred in failing to consider prisoner’s claim that he was
12 No. 03-3531

unable to submit a grievance, and therefore lacked

available administrative remedies, because prison

employees refused to provide him with the necessary

forms); Miller v. Norris, 247 F.3d 736, 740 (8th Cir.

2001) (“[A] remedy that prison officials prevent a

prisoner from ‘utiliz[ing]’ is not an ‘available’ remedy

under § 1997e(a).” (alteration in original)). The defendants in this case have yet to give any reason why Dale

was refused the forms he requested, or to explain how

he could use the administrative grievance system

without the forms mandated for that purpose.

Id. at 656.

The prison officials in Kaba’s case argue that no reasonable factfinder could find that administrative remedies were

not available to him, because he filed three grievances while

at Marion prior to the attack, including the one several days

before the beating, and he filed both an FTCA claim and

this lawsuit within days of the attack. Kaba counters that

he attempted to file grievances up to and through the

attack, but that he was denied forms, intimidated into not

pursuing formal grievances, and retaliated against for

attempting to pursue administrative relief. The attack in

his cell, he points out, is exactly what the staff had threatened would happen if he kept on filing grievances about

them. In essence, Kaba takes the position that all grievances are not alike and that it was unrealistic to expect him

to file a grievance against the very people who were threatening retaliation and preventing him from obtaining the

proper forms.

We agree with Kaba that a more discriminating analysis

is necessary. The ability to take advantage of administrative grievances is not an “either-or” proposition. Sometimes

grievances are clearly available; sometimes they are not;

and sometimes there is a middle ground where, for example, a prisoner may only be able to file grievances on certain
No. 03-3531 13

topics. Kaba contends that he could obtain grievance forms

and file them only if he pre-disclosed the topic of the

grievance to the prison officials, and that they would not

provide the form if he intended to file a grievance against

them. In addition, there is an important temporal element:

while administrative process may have been available at

the beginning of Kaba’s tenure at Marion, he claims that it

became progressively less available with each incident

detailed, until at some point, whether before or after the

attack in Kaba’s cell, it became actually unavailable.

Viewing the evidence in a light most favorable to Kaba,

we cannot say that the prison officials met their burden of

proving the availability of administrative remedies. We

have no doubt that the Bureau of Prisons, including the

prison in Marion, has a formal process. But it is unclear

based on the evidence before us whether Kaba could avail

himself of it. There is no dispute that Kaba was beaten; that

Laird was removed from the unit for an undisclosed reason;

and that if Kaba had filed a grievance after his transfer

from Marion, it would have been tardy under the rules. The

evidence that Kaba proffered in opposition to summary

judgment indicates that he was denied the necessary forms

and beaten by other inmates after instigating an investigation and filing his third grievance. The warden told him

that if he filed a grievance about Laird’s actions, the

prison’s internal investigation of his allegations would stop

(a statement not much different than that in Croak, 312

F.3d at 111-12, where the prison officials erroneously told

the prisoner that he must wait until the investigation was

complete before filing a grievance). The prison officials

naturally dispute Kaba’s account, and we are obviously

making no finding here about which side is correct.

The attack itself may have transformed the remedies from

available to unavailable, for an ordinary prisoner in Kaba’s

shoes. The fact that he was able to file his FTCA claim and

this lawsuit does not prove that remedies were available
14 No. 03-3531

within the system. As the Second Circuit reasoned in

Hemphill, “threats or other intimidation by prison officials

may well deter a prisoner of ‘ordinary firmness’ from filing

an internal grievance,” but not an external one because the

latter might avoid “threatened retaliatory conduct from

prison employees.” 380 F.3d at 688. The affidavits of the

prison officials and Kaba’s other grievances and filings

merely turn this into a dispute with competing evidence,

requiring a factfinder to evaluate the credibility of the

witnesses and other evidence in the record.

We are left with a substantial number of open questions

that cannot be resolved on the record before us: Could Kaba

have obtained the necessary forms to file a grievance

against these named prison officials? Could he have appealed to the Bureau of Prisons’ Regional Director without

the appropriate form? See 28 C.F.R. § 524.14(a), (d)(1).

Would the Bureau of Prisons have permitted a tardy

grievance after Kaba’s transfer and is there any way

that a prisoner would know whether the prison system

considers such a situation “a valid reason for delay”? See 28

C.F.R. § 524.14(b). At what point did the prison officials’

misconduct, if there was any, rise to the level so as to

prevent a grievance from being filed? In light of these and

other questions about the availability of the grievance

system for Kaba, summary judgment is inappropriate at

this point.

In addition to contending that the grievance system was

unavailable to him, Kaba contends that the prison officials should be estopped from arguing that he failed to

exhaust, because it was their misconduct and misstatements, like the comment that he could get grievance forms

from the nonexistent paralegal, that impeded him. Because

we have already decided that summary judgment was

improper, we have no need to pursue this avenue further.

We note, however, that while other circuits have found that

equitable estoppel applies to the PLRA’s exhaustion
No. 03-3531 15

requirement, see Hemphill, 380 F.3d at 688-89 (2d Cir.);

Wright v. Hollingsworth, 260 F.3d 357, 358 n.2 (5th Cir.

2001), we have explicitly avoided deciding whether equitable estoppel applies in this context. See Lewis v. Washington, 300 F.3d 829, 834 (7th Cir. 2002). See also Jernigan v.

Stuchell, 304 F.3d 1030, 1033 (10th Cir. 2002) (avoiding

deciding whether equitable estoppel applies in this context).

Here, again, we are satisfied that we may save this issue for

another day.

Finally, Kaba challenges the district court’s order dismissing his claim under the FTCA and refusing to permit

him to amend his complaint a second time. We review a

district court’s denial of leave to amend a complaint for

abuse of discretion. Marshall v. Knight, 445 F.3d 965, 968

(7th Cir. 2006). “A party may amend the party’s pleading

once as a matter of course at any time before a responsive

pleading is served.” FED. R. CIV. P. 15(a). Even after a

responsive pleading has been served, a party may amend its

pleading by leave of the court, “and leave shall be freely

given when justice so requires.” Id. “It is, by now, axiomatic

that district courts have a special responsibility to construe

pro se complaints liberally and to allow ample opportunity

for amending the complaint when it appears that by so

doing the pro se litigant would be able to state a meritorious

claim.” Donald v. Cook County Sheriff’s Dept., 95 F.3d 548,

555 (7th Cir. 1996).

Kaba contends that his “Motion Request for De Nov[o]

Review and Propos[ed] Amend and Amendment and

Rese[rv]ed His Objection” should have been construed

(liberally) as a motion for leave to amend his claim. He

points out that he filed the motion in direct response to a

magistrate judge’s order that stated, “If plaintiff wishes

to assert a tort claim against the United States, he should

file a motion seeking leave to file a Second Amended

Complaint asserting a claim pursuant to the Federal Tort

Claims Act and all other claims upon which he intends to
16 No. 03-3531

proceed.” The magistrate had noted that although Kaba’s

First Amended Complaint attempted to raise a claim under

the FTCA and to sue the prison administrators in their

official capacity, it alleged only federal claims that were

properly characterized as a Bivens action. A Bivens action

may not be brought against the United States or a federal

agency. It was for that reason that the magistrate judge

recommended dismissing the official capacity claims. Kaba

then filed his motion, but the district court found that it did

not even mention the FTCA and therefore it could not be

construed as a motion for leave to amend the complaint.

While it is true, as the Supreme Court held in McNeil v.

United States, 508 U.S. 106, 113 (1993), that the Court

has “never suggested that procedural rules in ordinary civil

litigation should be interpreted so as to excuse mistakes by

those who proceed without counsel,” the district court’s

approach here was too literal. The motion itself notes that

it follows the magistrate judge’s order and seeks to hold the

Bureau of Prisons liable because it “failed to properly train[

] [its] staffs which resulted in plaintiff injury and further

failed to properly supervise their employees as a result

plaintiff was assaulted” [sic]. Although the complaint does

not include the word negligence, construed liberally the

proposed amended complaint alleges negligent failure to

train and supervise (a state law claim), and thus implicates

the FTCA. See Gil v. Reed, 381 F.3d 649, 658 n.2 (7th Cir.

2004); Hoskins, 320 F.3d at 764. Nevertheless, Kaba faces

a different problem that renders harmless any error the

district court may have committed. As we noted earlier, he

filed his FTCA administrative complaint on March 6, 2001,

and he received his notice denying the claim on December

6, 2001. Long before the Bureau of Prisons acted on his

claim—on March 12, 2001—he filed this lawsuit. McNeil

holds that a lawsuit filed before the federal agency finally

denies the claim is premature and must be dismissed. 508

U.S. at 113. It is thus not possible for Kaba to pursue his
No. 03-3531 17

FTCA claim: his March 12, 2001, lawsuit was too early, and

any suit he might file now would be too late, as it would be

long after the deadline of six months after the agency acts.

IV

The judgment of the district court is REVERSED and

this case is REMANDED to the district court for further

proceedings consistent with this opinion.
18 No. 03-3531

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-16-06