                           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 Litiga-
tion 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 preju-
dice. 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 plain-
tiff could reasonably be expected to offer to save the com-
plaint, 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 long-
er available for exhaustion and the defect in the com-
plaint 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 likeli-
hood 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 individ-
ual 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 non-
moving 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 “self-
serving.” 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 adminis-
trative 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 discre-
tion 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 reason-
ably 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 de-
tails 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 proffer-
ing 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 ten-
nis 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 trans-
ferred, 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 pres-
sure” to get Barnett to stab Kaba because he had com-
No. 03-3531                                                  7

plained to the warden and cooperated with the investiga-
tion, 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 situa-
tion 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 atten-
tion 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 responsi-
bility 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 al-
though 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 center-
piece 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 jurisdic-
tional. 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 pro-
vide—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 “avail-
able,” 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, admin-
istrative 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 griev-
ance. 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 exhaust-
ing.” 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 intimi-
     dation 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 posi-
      tions 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 pro-
vided 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 require-
      ment 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 defen-
     dants 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 reason-
able 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 threat-
ened would happen if he kept on filing grievances about
them. In essence, Kaba takes the position that all griev-
ances are not alike and that it was unrealistic to expect him
to file a grievance against the very people who were threat-
ening 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 administra-
tive 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 exam-
ple, 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 investiga-
tion 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 ap-
pealed 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 offi-
cials should be estopped from arguing that he failed to
exhaust, because it was their misconduct and misstate-
ments, 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 equi-
table estoppel applies in this context. See Lewis v. Washing-
ton, 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 dis-
missing 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
