                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-1023
CURTIS L. DALE,
                                              Plaintiff-Appellant,
                                 v.

HARLEY G. LAPPIN, et al.,
                                           Defendants-Appellees.

                          ____________
            Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division
        No. IP 02-143-C-B/S—Sarah Evans Barker, Judge.
                          ____________
      ARGUED MAY 20, 2004—DECIDED JULY 15, 2004
                    ____________



 Before COFFEY, ROVNER, and EVANS, Circuit Judges.
  PER CURIAM. Federal inmate Curtis Dale filed suit under
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), alleging that the warden
and several other Bureau of Prisons employees at the
penitentiary in Terre Haute, Indiana, violated his Eighth
Amendment right to be free from cruel and unus-
ual punishment when they failed to protect him from an
attack by fellow inmates. The district court screened the
complaint under 28 U.S.C. § 1915A, dismissed the warden,
and later granted summary judgment for the remaining
defendants on the ground that Dale had failed to exhaust
2                                               No. 03-1023

his administrative remedies. Because the defendants did
not meet their burden of establishing the absence of
disputed issues of material fact concerning this question, we
vacate the judgment and remand to the district court for
further proceedings.
  In his complaint Dale alleges that the warden and two
others at Terre Haute knew he had been threatened with
physical attack but failed to protect him from other inmates
who stabbed him seven times in the prison yard. Dale was
attacked on September 22, 2000, and 19 days later prison
administrators initiated the process of transferring him to
the Federal Transfer Center in Oklahoma City, where he
stayed for seven days before being transferred again. The
record is silent as to the severity of his wounds or the
amount of time he was hospitalized at Terre Haute before
his transfer.
  Initially, the district court screened the complaint under
§ 1915A and ordered Dale to supplement his complaint
because he had not pleaded exhaustion. Dale responded
that “he attempted to utilize the administrative remedey
[sic] process at UNITED STATES PENITENTIARY TERRE
HAUTE” and at the penitentiary in Lompoc, California,
where he was then housed. Dale attached documents
showing that he requested grievance forms at Lompoc in
March 2002 but had been told that the 20-day time limit for
submitting a grievance had passed and thus his only
recourse was to file a claim under the Federal Tort Claims
Act. The district court was not satisfied with this response,
so it sua sponte dismissed Dale’s complaint, reasoning that
he had not shown that he exhausted his administrative
remedies. Dale moved for reconsideration, explaining that
any failure to exhaust was due to the defendants’ refusal to
provide him with the BP-8 form that he believed was
necessary to prepare a grievance. The district court granted
the motion for reconsideration and vacated its earlier order.
No. 03-1023                                                 3

   The district court then dismissed the warden because
Dale had not pleaded his personal involvement in failing to
prevent the stabbing. Dale responded by moving to amend
his complaint to add two more defendants and to reinstate
the warden as a defendant. The district court allowed Dale
to add the new defendants but took his request to reinstate
the warden under advisement and ordered Dale to “supple-
ment his assertion” within 10 days to show that the warden
had personal knowledge that Dale was in danger. Dale
never complied. Meanwhile, the four remaining defendants
moved for summary judgment, arguing that Dale had failed
to exhaust his administrative remedies because he never
filed a grievance. The district court agreed.
  Although Dale is the appellant, his first argument is that
we lack jurisdiction over this appeal because, he says, the
district court never entered a final judgment as to the
warden. The district court’s grant of summary judgment
applied only to the four defendants who still remained in
the case; the warden had been dismissed early in the liti-
gation. Dale, though, seems to believe that the case is still
active as to the warden.
  A final, appealable decision is one that disposes of all
claims against all parties, with the exception (not applicable
here) where the district court complies with the require-
ments to enter a partial final judgment. See Fed. R. Civ. P.
54(b). A district court’s decision is final under 28 U.S.C.
§ 1291 if the court “has finished with the case,” Hill v.
Potter, 352 F.3d 1142, 1144 (7th Cir. 2003), and “finished”
is the only way to describe this litigation as it currently
stands in the district court. Dale sought to reinstate the
warden as a defendant, but the district court never granted
the motion. Rather, the court took Dale’s request “under
advisement” and instructed him to file a supplemental
pleading explaining how the warden was personally
responsible for his injuries. Dale did not comply, so he
effectively abandoned his claim against the warden by
4                                                No. 03-1023

never mentioning him again. See, e.g., Heft v. Moore, 351
F.3d 278, 281-82 (7th Cir. 2003); Laborers’ Pension Fund v.
A & C Envtl., Inc., 301 F.3d 768, 774 n.4 (7th Cir. 2002);
Baltimore Orioles, Inc. v. Major League Baseball Players
Ass’n, 805 F.2d 663, 667 (7th Cir. 1986). The district court’s
early dismissal of the warden was never vacated, and the
court’s later summary judgment order resolved the case as
to the four remaining defendants. When the court entered
its judgment dismissing the complaint, all parties and all
claims had indeed been disposed of. Thus Dale’s jurisdic-
tional argument fails.
  On the merits, Dale argues that the district court erred in
granting summary judgment for the defendants because his
pleadings and affidavits show that he requested the
administrative grievance form within the 20-day time limit.
Dale contends that Bureau of Prisons employees “fail[ed] to
provide the necessary forms to file for administrative
remedies timely as prescribed by BOP policy.” Thus, Dale
believes that he provided sufficient evidence to show that
prison officials “made administrative remedies so unavail-
able as to deprive Dale of his rightful access to the griev-
ance process.”
   Although exhaustion of administrative remedies is a
precondition to a federal prisoner filing a Bivens suit, 42
U.S.C. § 1997e(a); Massey v. Helman (Massey II), 259 F.3d
641, 645-46 (7th Cir. 2001), failure to exhaust is an af-
firmative defense that the defendants have the burden of
pleading and proving, Walker v. Thompson, 288 F.3d 1005,
1009 (7th Cir. 2002); Massey v. Helman (Massey I), 196 F.3d
727, 735 (7th Cir. 1999). In order to properly exhaust, a
prisoner must submit inmate complaints and appeals “in
the place, and at the time, the prison’s administrative rules
require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.
2002); see Riccardo v. Rausch, No. 02-1961, 2004 WL
1545241, at *1 (7th Cir. July 12, 2004). The Bureau of
Prisons regulations require that an inmate submit an
No. 03-1023                                                5

administrative complaint on the appropriate form within 20
days of the underlying event. 28 C.F.R. § 542.14(a); see
McCoy v. Gilbert, 270 F.3d 503, 510 (7th Cir. 2001); Smith
v. Zachary, 255 F.3d 446, 448 (7th Cir. 2001).
  In his response to the defendants’ motion for summary
judgment, Dale explains that he requested the proper
grievance forms several times while at Terre Haute and
once in Oklahoma City. While at Terre Haute, says Dale, he
was told that the employees did not have grievance forms,
so they gave him blank pieces of paper instead. Although
the record indicates that Dale’s transfer to Oklahoma City
was initiated 19 days after he was stabbed, it is not clear
when Dale arrived in Oklahoma City. Once he was at
Oklahoma City, Dale continues, he again asked a guard for
a grievance form, but this time the guard told him that
grievance forms would have to be obtained from the unit
team or else could be provided if the warden so directed.
Dale states that he made this latter request on the last day
to submit his grievance and so the response he got made it
“virtually impossible to pursue a complaint.” Dale made no
further attempt to obtain the proper grievance forms until
March 2002—18 months later—when he requested the
forms while housed in Lompoc.
  On appeal the defendants first argue that since Dale
included all of his factual representations in his unsworn
response to the motion for summary judgment rather than
in an affidavit, there is no admissible evidence to support
his version of events. However, Dale attached to his re-
sponse to the defendants’ motion for summary judgment an
“Affidavit in Support” in which he swears to the truth of the
factual allegations in that response, and those allegations,
had they been included in the affidavit directly, without
question would be considered evidence, not merely asser-
tion. “By declaring under penalty of perjury that the
[response] was true, . . . he converted the [response], or
rather those factual assertions in the [response] that
complied with the requirements for affidavits specified in
6                                                No. 03-1023

the rule . . . into an affidavit,” Ford v. Wilson, 90 F.3d 245,
247 (7th Cir. 1996), thereby complying with Federal Rule of
Civil Procedure 56(e). Therefore, Dale’s verified response
constitutes competent evidence to rebut the defendants’
motion for summary judgment.
  The district court did not address any of Dale’s evidence
directly, but merely described his allegations as “bald
assertions,” and stated that he failed to “cite specific con-
crete facts establishing the existence of the truth” of his
complaint. But in his response Dale identifies the prison
employees from whom he requested forms: his counselor,
his case manager, the on-duty floor officer, and members of
his unit team. Dale also identifies the specific form he
requested, the BP-8, which is the first form the Bureau of
Prisons requires inmates to complete in order to submit a
grievance, see 28 C.F.R. § 542.13(a); Massey II, 259 F.3d at
643. Dale also avers that the on-duty officer gave him blank
sheets of paper when he requested a grievance form, that he
was told by his counselor and case manager that they did
not have the proper grievance form, that he requested a
form from his counselor and was told that forms had to be
issued by the unit team, and that he notified the members
of his unit team several times that he had been denied
grievance forms, but got no response. This level of detail
cannot be dismissed as “bald assertion.”
  Because Dale provided sufficiently specific facts to sup-
port his allegation that he requested the correct grievance
form at Terre Haute, the question becomes whether the
defendants’ refusal to comply with his request means that
Dale had no available administrative remedies. At oral
argument, the defendants asserted, for the first time, that
inmates are not required to use the forms to submit a
grievance, but they provided no support for their assertion.
The Bureau of Prisons’ regulations plainly state that a
grievance should be submitted “on the appropriate form,” 28
C.F.R. § 542.14(a), and the defendants have not pointed to
any regulation that would allow an inmate to submit a
No. 03-1023                                                 7

grievance without the Bureau of Prisons’ forms. 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 unable to submit a grievance, and therefore lacked
available administrative remedies, because prison employ-
ees 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.
  Failure to exhaust is an affirmative defense, and the
defendants did not meet their burden of proving that Dale
had available remedies that he did not utilize. See Walker,
288 F.3d at 1009; Massey I, 196 F.3d at 735. Accordingly,
we VACATE the grant of summary judgment and REMAND
the case to the district court for further proceedings.
8                                         No. 03-1023

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—7-15-04
