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

No. 04-3215
JOSEPH BARNES,
                                                  Plaintiff-Appellant,
                                  v.

KENNETH R. BRILEY, Warden,
MICHAEL KROLIKIEWICZ,
GEORGIA SCHONAUR, et al.,
                                               Defendants-Appellees.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
                No. 00 C 6280—James B. Zagel, Judge.
                          ____________
      ARGUED JUNE 1, 2005—DECIDED AUGUST 23, 2005
                          ____________


 Before BAUER, RIPPLE and KANNE, Circuit Judges.
  RIPPLE, Circuit Judge. Joseph Barnes, an Illinois state
prisoner, filed this action under 42 U.S.C. § 1983 against
several present and former employees of the Stateville
Correctional Facility (“Stateville”). On the defendants’
motions, the district court dismissed Mr. Barnes’ action
for failure to exhaust his administrative remedies, as
required by the Prison Litigation Reform Act (“PLRA”), 42
U.S.C. § 1997e(a). Mr. Barnes has appealed. For the reasons
set forth in the following opinion, we now reverse the
judgment of the district court and remand for further
2                                                  No. 04-3215

proceedings consistent with this opinion.


                               I
                      BACKGROUND
                              A.
  Mr. Barnes has been incarcerated at Stateville since 1997.
During 1999, Centers for Disease Control (“CDC”) was
conducting a study, under contract with Stateville, to
determine the amount and severity of communicable
diseases among the inmate population. In August 1999, Mr.
Barnes became concerned that he had been exposed to
hepatitis and asked to be tested; his request was not an-
swered. In October 2000, he filed a pro se complaint against
the CDC under the Federal Tort Claims Act (“FTCA”), 28
U.S.C. § 1346. Mr. Barnes alleged that he had been exposed
to hepatitis as a result of poor sanitation in prison and being
housed with infected inmates. He also alleged that CDC
knew that inmates infected with HIV and hepatitis were
entering Illinois prisons and that a significant risk existed
that those pathogens could be transmitted between prison-
ers. He further alleged that CDC had failed to identify and
to isolate infected prisoners and had provided no treatment
for infected inmates.
  In February 2001, the district court determined that Mr.
Barnes had exhausted his administrative remedies in
relation to the FTCA, see 28 U.S.C. § 2675(a), and allowed
the action to proceed. The district court also appointed
counsel for Mr. Barnes in March 2001.
  After investigating Mr. Barnes’ case, counsel determined
that the circumstances underlying his FTCA claims gave rise
to a different set of claims against certain Stateville adminis-
trative and medical personnel. In anticipation of pursuing
No. 04-3215                                                    3

those claims in court, Mr. Barnes initiated the prison
grievance process. In May 2001, he filed a grievance regard-
ing the denial of his request for a hepatitis test and for
treatment if necessary. Months later, after having received
no response, Mr. Barnes forwarded his grievance to Griev-
ance Officer Georgia Schonaur. She recommended to
Stateville’s warden, Kenneth Briley, that the grievance
be denied as untimely; her report was reviewed and
signed by Grievance Officer Carmen Ruffin. Warden Briley
concurred with the recommendation and advised Mr.
Barnes of the denial of his grievance. Mr. Barnes appealed
the decision to the director of the Illinois Department
of Corrections (“IDOC”) and the administrative review
board. In December 2001, Mr. Barnes’ appeal was denied.
  In October 2002, Mr. Barnes wrote to Nurse Jenny Laigh
and Dr. Kevin Smith and requested a hepatitis test and
proper treatment if the test results were positive. When
he received no response, he filed a grievance on Novem-
ber 6, 2002, which reiterated his requests. In January 2003,
he forwarded that grievance to Grievance Officer Ruffin;
at Officer Ruffin’s recommendation, Warden Briley denied
the grievance. Mr. Barnes appealed. On March 20, the
administrative review board referred his grievance back to
                                            1
Stateville “for a review of [his] concerns.” R.19 ¶ 22.
  In the meantime Mr. Barnes received a hepatitis test on
March 17, 2003. In May, Stateville informed him that he had
tested positive. He has not yet received medical treatment.


                               B.



1
   The director of Stateville issued a final decision on December
5, 2003, denying Mr. Barnes’ grievance. See infra note 2.
4                                                No. 04-3215

  In August 2003, Mr. Barnes filed a motion for leave to
dismiss all claims against the CDC and to file an amended
complaint to substitute a claim for violations of 42 U.S.C.
§ 1983 against the present Stateville defendants. The district
court granted the motion. The new complaint alleged that
the defendants had displayed deliberate indifference to his
medical needs, in violation of the Eighth Amendment to the
Constitution of the United States, by ignoring his griev-
ances, by refusing to test him for hepatitis and by failing to
provide him treatment after he tested positive for the virus.
  The defendants moved to dismiss the suit on the basis that
Mr. Barnes had failed to exhaust the prison grievance
process related to the incidents underlying his § 1983 claims
before filing his original complaint. The district court
granted the motion, stating:
    It is well established that “a suit filed by a prisoner
    before administrative remedies have been exhausted
    must be dismissed.” Perez v. Wis. Dep’t of Corr., 182 F.3d
    532, 535 (7th Cir. 1999). Moreover, “the district court
    lacks discretion to resolve the claim on the merits, even
    if the prisoner exhausts intraprison remedies before
    judgment. Id. Since Plaintiff did not submit any griev-
    ances prior to filing his original complaint on October
    10, 2000, I find that his case must be dismissed. Plain-
    tiff’s filing of grievances during the pendency of this
    lawsuit could not (and did not) satisfy that PLRA’s
    exhaustion requirements. This may generate an overly
    technical result, but it is what the law requires.
R.69 at 3-4. Mr. Barnes appeals that decision.


                             II
                       DISCUSSION
No. 04-3215                                                    5

A. Jurisdiction
  As an initial matter, the defendants question whether the
district court’s dismissal of Mr. Barnes’ amended complaint
constitutes a final and appealable judgment. See 28 U.S.C. §
1291. “Dismissal for failure to exhaust is without prejudice
and so does not bar the reinstatement of the suit unless it is
too late to exhaust.” Walker v. Thompson, 288 F.3d 1005, 1009
(7th Cir. 2002); see also Ford v. Johnson, 362 F.3d 395, 401 (7th
Cir. 2004) (holding that “all dismissals under § 1997e(a)
should be without prejudice” (emphasis in original)). The
district court’s order did not indicate whether the dismissal
was with or without prejudice, but we shall assume for
present purposes that it was without prejudice.
  A dismissal without prejudice normally “does not qualify
as an appealable final judgment because the plaintiff is
free to re-file the case.” Larkin v. Galloway, 266 F.3d 718,
721 (7th Cir. 2001). Certain circumstances allow us, how-
ever, to consider such a dismissal as final. For instance, if
the plaintiff “cannot cure the defects” in his complaint, the
dismissal in effect was with prejudice and is final for
purposes of appellate review. Strong v. David, 297 F.3d 646,
648 (7th Cir. 2002); see also Larkin, 266 F.3d at 721 (stating
that, if the “plaintiff will not be able to amend her com-
plaint, the dismissal is final” and appealable).
  In this case, Mr. Barnes “has no more remedies to exhaust,
so the defect that the district judge identified is irrepara-
ble—if it is a defect at all.” Strong, 297 F.3d at 648 (emphasis
in original). Neither the record nor the defendants suggest
any amendment that Mr. Barnes could make to his com-
plaint that would remedy the district court’s concern that he
failed to exhaust his administrative remedies before he filed
his original complaint. We therefore are confident of our
jurisdiction under 28 U.S.C. § 1291 to review the district
6                                                  No. 04-3215

court’s dismissal of Mr. Barnes’ action.


B. Standard of Review
   We review a district court’s grant or denial of a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6)
de novo. Williams v. Seniff, 342 F.3d 774, 781 (7th Cir. 2003).
We construe the complaint “in the light most favorable to
the plaintiff, taking as true all well-pleaded factual allega-
tions and making all possible inferences from those allega-
tions in his or her favor.” Lee v. City of Chicago, 330 F.3d 456,
459 (7th Cir. 2003). We shall affirm the dismissal only if it
“ ‘appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to
relief.’ ” Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46
(1957)).


C. Exhaustion
  On appeal, Mr. Barnes maintains that he complied with §
1997e(a) by exhausting his administrative remedies for his
§ 1983 claims before amending his complaint to add those
claims. The PLRA provides that “[n]o 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). The statute makes exhaus-
tion a “precondition to suit” and requires dismissal if the
prisoner failed to satisfy that condition. Perez, 182 F.3d at
535. A district court has no “discretion to resolve the claim
on the merits, even if the prisoner exhausts intra-prison
remedies before judgment.” Id. The exhaustion requirement
affords prison officials the opportunity to avoid litigation by
No. 04-3215                                                7

addressing a prisoner’s complaint in the first instance, and
“even partial success in the administrative process may
reduce the dispute to one that can be resolved amicably, or
in which damages will be small.” Id.
  Mr. Barnes submits that the PLRA did not require him to
have exhausted his administrative remedies for his 42 U.S.C.
§ 1983 claims prior to filing his FTCA claim in the original
complaint. The defendants maintain that Mr. Barnes cannot
satisfy § 1997e(a) by exhausting the prison grievance
process after filing suit, no matter how different the claims
in his amended complaint were from those in his original
complaint.
  In a related contention, Mr. Barnes maintains that he had
no administrative remedy “available,” 42 U.S.C. § 1997e(a),
related to his § 1983 claims when he filed a claim under
the FTCA in two respects. First, the IDOC, a state agency,
had no authority to take remedial action against the CDC,
a federal agency, which originally was the only defendant.
Second, the § 1983 cause of action did not yet exist at the
time. The defendants, in contrast, submit that Mr. Barnes
did have an available remedy because, if he had made
prison officials aware of the alleged exposure to hepatitis
and the denial of proper treatment, they could have re-
sponded to his medical concerns.
  We believe that Mr. Barnes has complied with the purpose
and letter of the PLRA. He filed his original complaint
alleging properly exhausted claims against the CDC under
the FTCA. After an investigation by his newly appointed
counsel revealed that the circumstances underlying his
original complaint supported different claims against
different defendants, Mr. Barnes initiated the prison
grievance process, as required by the PLRA. Once he had
8                                                       No. 04-3215
                                                    2
exhausted those administrative remedies, Mr. Barnes
dismissed his FTCA claims and, with the district court’s
leave, substituted his § 1983 claims against the Stateville
defendants. It is evident, therefore, that Mr. Barnes did not
attempt to replead improperly exhausted claims in his
amended complaint. Rather, he asserted properly exhausted
FTCA claims in his original complaint, and later he raised
new, properly exhausted § 1983 claims against new defen-
dants.
   Furthermore, Mr. Barnes complied with the purpose of the
PLRA. Mr. Barnes made repeated requests for a hepatitis
test and any necessary treatment through the prison griev-
ance process before initiating his claims against the
Stateville defendants. He therefore afforded those defen-
dants the opportunity to address his grievances before he
filed suit against them.
  The rationale of the district court demanded that Mr.
Barnes shoulder an impossible task—to exhaust remedies
not yet pertinent to the allegations of the filed complaint.


2
   The defendants submit that Mr. Barnes failed to exhaust the
prison grievance system related to his present § 1983 claims
before amending his complaint because he had not yet received
a final denial of his grievance. See Ford v. Johnson, 362 F.3d 395,
398-99 (7th Cir. 2004) (holding that prisoner could not bring
suit under § 1983 until after the prison administrative review
board had issued its decision). Specifically, after Mr. Barnes filed
his amended complaint, the director of Stateville issued a final
decision on December 5, 2003, denying his grievance. The
defendants concede, however, that they did not inform the
district court of this final decision or specifically argue a lack of
final disposition of Mr. Barnes’ grievance. Because the defendants
raise this argument for the first time on appeal, we deem it to be
waived. See Perry v. Sullivan, 207 F.3d 379, 383 (7th Cir. 2000).
No. 04-3215                                                 9

When Mr. Barnes initially sued the CDC, he alleged no
cause of action against the state defendants and therefore
had no reason to exhaust administrative remedies with
respect to them. The filing of the amended complaint was
the functional equivalent of filing a new complaint, see 8
James Wm. Moore, Moore’s Federal Practice § 41.21[2] (3d
ed. 2005) (“In many instances the procedure for, and effect
of, an amendment will be the same as a voluntary dismissal
because of the similarities between the governing rules.”),
and it was only at that time that it became necessary to have
exhausted the administrative remedies against the state
defendants.


D. Defendant Joseph Smith
  Dr. Joseph Smith separately contends that Mr. Barnes’
claims against him should be dismissed as procedurally
defaulted. In May 2001, Mr. Barnes filed his initial prison
grievance relating to his § 1983 claims; it named Stateville’s
medical director, Dr. Joseph Smith, among other prison
personnel. The grievance was denied as untimely. Mr.
Barnes then filed a new grievance on November 6, 2002,
which reiterated that his requests for testing and treatment
were being ignored. This later grievance did not name
Dr. Joseph Smith, who since had left the employ of
Stateville; it identified Jenny Laigh and Dr. Kevin Smith, the
new medical director.
  On appeal, Dr. Joseph Smith contends that Mr. Barnes
procedurally defaulted on the only grievance that named
him. We do not believe that Mr. Barnes is precluded from
pursuing his § 1983 claim against Dr. Smith. By filing his
November grievance, Mr. Barnes restarted the grievance
process. Contrary to Dr. Smith’s suggestion, moreover, Mr.
Barnes did not abandon this claim by not naming Dr. Smith
10                                               No. 04-3215

specifically in the latter grievance. At the time Mr. Barnes
filed that grievance, the Illinois Administrative Code did not
require prisoners to name the individual against whom they
filed grievances or to assert specific claims against any
person. See Ill. Admin. Code tit. 20 § 504.810(b) (year).
Furthermore, the November grievance broadly stated that
it was “being submitted in regards to a request for [sic] for
medical test and treatment. I have requested several times
to be tested for Tuberculosis, H.I.V., Hepatitis, etc. for the
past few years.” R.53, Ex.C at 1. When we draw all reason-
able inferences in favor of the plaintiff, this language does
not indicate, as Dr. Smith submits, that his name was
“intentionally omitted from” that grievance. Appellee Br. of
Dr. Smith at 13. Rather, the language encompasses the
alleged past failure of Dr. Smith to respond to Mr. Barnes’
request for a hepatitis test and treatment. Therefore, Mr.
Barnes may pursue his § 1983 claims against Dr. Smith
in federal court.


E. Failure to State a Claim
  As a final matter, defendants Michael Krolikiewicz,
Officer Schonaur and Officer Ruffin submit that Mr. Barnes’
allegation that they had displayed deliberate indifference to
his medical needs should be dismissed on its merits because
they played no role in his medical care. This submission is
premature because the district court did not reach the merits
of Mr. Barnes’ suit. Such a merits inquiry should be ad-
dressed by the trial court in the first instance.


                        Conclusion
  For the foregoing reasons, we reverse the judgment of
the district court and remand the case for proceedings
No. 04-3215                                                11

consistent with this opinion.
                                 REVERSED and REMANDED
A true Copy:
       Teste:

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




                   USCA-02-C-0072—8-23-05
