                           UNPUBLISHED ORDER
                        Not to be cited per Circuit Rule 53




           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                           Submitted March 23, 2006*
                            Decided March 24, 2006

                                     Before

                    Hon. WILLIAM J. BAUER, Circuit Judge

                    Hon. DANIEL A. MANION, Circuit Judge

                    Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 05-3643

KELVIN BRENT HOLMES,                        Appeal from the United States District
         Plaintiff-Appellant,               Court for the Northern District of Illinois,
                                            Eastern Division
      v.
                                            No. 04 C 2287
UNITED STATES DEPARTMENT
OF VETERANS AFFAIRS,                        Matthew H. Kennelly,
         Defendant-Appellee.                Judge.

                                   ORDER

      The district court dismissed this tort action against the United States
Department of Veterans Affairs on the ground that it was filed before plaintiff
Kevin Holmes had exhausted his administrative remedies. We vacate the dismissal
and remand for further proceedings.

      Holmes was receiving outpatient care from the Drug Dependency Treatment
Center at the Westside Veterans Administration Hospital in Chicago, Illinois. He

      *
        After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-3643                                                                    Page 2

alleges that staff at the center “harassed” him during a December 2003 visit by
insulting him and invading his privacy. When he “spoke out” against this abuse, he
says, guards at the center forcibly escorted him to the Westside emergency room.
While there, Holmes alleges, he was strapped to a bed, injected with substances in
both arms, and rendered unconscious. The next day his keys and wallet were
returned, and he was released. When he reached home, however, Holmes concluded
that his appearance had been changed: his hair was “cut and thinned,” his hairline
was “raised,” his eyebrows and mustache thinned, his beard left with “spots and
gashes in it,” and his “teeth had been bucked.” According to his complaint, he also
found semen stains in his underwear. By the end of the following month, Holmes
continues, his lips had “collapsed,” his right nostril was “stretched,” and all of the
hair on his chest, stomach, legs, and arms was gone. And, Holmes adds, after his
release his identification has “looked different,” photographs have disappeared from
his wallet, and there has been “constant and suspicious rambling” in his home.

        Holmes first sued based on these allegations in March 2004. Upon receiving
the complaint, which arises under the Federal Tort Claims Act, 28 U.S.C. §§ 2671–
2680, the district court notified Holmes that his lawsuit could not proceed unless he
first established that the VA had received and denied an administrative claim, see
id. § 2675(a). When Holmes responded that he had filed an administrative claim
but it was still pending, the court held that the suit was premature and dismissed it
“without prejudice to filing a new action if and when the VA denies his
administrative claim.” The court also explained that, should Holmes refile after
exhausting, “he should note on the ‘Civil Cover Sheet’ that the new case is a
refiling” of the first.

       In August 2004 the VA denied Holmes’s administrative claim. In February
2005, three days before expiration of the six-month statute of limitations, see 28
U.S.C. § 2401(b), Holmes filed a motion to reinstate his original suit. At an April
2005 hearing on the motion, the government informed the court that it would
simply move to dismiss the suit if reinstated because the revived action would carry
the same March 2004 filing date and still be “premature” because that date was
before Holmes exhausted his administrative remedies. Holmes responded that he
“argued that point down in the office in administrative section” but was told he had
to reinstate his original case. The court, rather than asking Holmes to elaborate,
assured him that he need not “worry about that right now” because his motion to
reinstate would be granted.

       As promised the government moved to dismiss the reinstated action. The
government argued that the suit, given that it was “reinstated” rather than a fresh
action, was technically filed in March 2004 before the VA denied his administrative
claim. Dismissal was thus compelled, the government contended, because under
McNeil v. United States, 508 U.S. 106, 110-13 (1993), no suit under the FTCA can
No. 05-3643                                                                    Page 3

proceed if instituted before the plaintiff has exhausted his administrative remedies.
The court attempted to convene a hearing on the government’s motion, but when
Holmes said he was hospitalized and had been unable to prepare a response, the
court dismissed based on McNeil. In its written order the court noted that it made
clear to Holmes “when we originally dismissed his case that a new lawsuit would
have to be filed,” but that he “did not follow that advice.”

       On appeal Holmes does not disagree with the government’s position that
reinstating his lawsuit had the effect of reviving its original March 2004 filing date
and thus compelled dismissal for a second time. But Holmes argues that the suit
should be allowed to proceed because he tried to comply with the district court’s
order to refile his lawsuit but was thwarted by personnel in the clerk’s office. As we
read his brief, Holmes insists that he tendered a fresh lawsuit but was told by a
court employee that he could not refile but instead must move to reinstate the
original suit. According to Holmes, the employee would not accept his new lawsuit
even after he showed her a copy of the district court’s order directing him to
commence a new action. The government counters that Holmes waived this
argument by not presenting it in the district court, but we disagree. The
government fails to acknowledge that Holmes told the court during the April 2005
hearing on his motion to reinstate that a court employee directed him to file a
motion to reinstate rather than a new lawsuit. Holmes does a much better job here
of describing what happened that day, but he said enough in the district court to
give the government and the court reason to make further inquiry.

       On the merits the government argues that Holmes is simply trying to excuse
a “failure to follow the district court’s directions” by blaming it on bad advice from
an employee in the clerk’s office. Generally a litigant cannot rely upon erroneous
advice from a court employee. See Sonicraft v. NLRB, 814 F.2d 385, 387 (7th Cir.
1987); Rezzonico v. H&R Block, Inc., 182 F.3d 144, 151-52 (2d Cir. 1999);
In re Pipkins, 154 F.3d 1009, 1009 (9th Cir. 1998). But the rule is not absolute. See
Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991) (recognizing that “under
some circumstances it is conceivable” that pro se litigant proceeding in forma
pauperis might “reasonably rely” on information from court personnel); see
also Knight v. Schofield, 292 F.3d 709, 710-11 (11th Cir. 2002) (holding that one-
year limitations period for filing petition under 28 U.S.C. § 2254 was equitably
tolled where clerk of state court waited 18 months to tell pro se petitioner about
adverse state decision that triggered federal limitations period even after assuring
petitioner that notice of decision would be mailed).

      Regardless, we do not agree with the government’s characterization of
Holmes’s position. Taking Holmes at his word, he did not ask or rely on the court
employee for advice but instead complied with her directive to file a motion for
reinstatement rather than a new lawsuit. Indeed, according to Holmes, he tried to
No. 05-3643                                                                       Page 4

convince the employee that her interpretation of the court’s order was wrong, and
only because his lawsuit was refused did he follow her wishes. Cf. Rezzonico, 182
F.3d at 152 (“The clerk’s office of course might not accurately interpret a judge’s
order, and parties should not rely on such sources to construe an order.”). Holmes
may well have misinterpreted what he was told or perhaps is recalling the events
incorrectly, but that is for the district court to sort out on remand; if the events are
as Holmes says, it would be manifestly unfair to fault him for following a directive
that he did not invite and could not ignore, but which doomed his otherwise timely
lawsuit.

       The government does not argue that we should affirm the dismissal of
Holmes’s complaint on the alternative ground that it fails to state a claim. But to
the extent that Holmes alleges that the VA altered his appearance, we recognize
that his complaint is delusional. Still, insofar as Holmes alleges that he was taken
to the hospital emergency room against his will and forced to undergo treatment
while held overnight, we cannot conclude at this early stage that his complaint fails
to state a claim. See Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 278
(1990) (explaining that “competent person has a constitutionally protected liberty
interest in refusing unwanted medical treatment”); Estate of Allen v. City of
Rockford, 349 F.3d 1015, 1020 (7th Cir. 2003) (same); see also Vitek v. Jones, 445
U.S. 480, 493-94 (1980) (recognizing due process liberty interest in avoiding
involuntary commitment to mental hospital); Laxton v. Bartow, 421 F.3d 565, 569
(7th Cir. 2005) (explaining on appeal challenging involuntary commitment that Due
Process clause protects a person’s freedom from physical restraint and that this
freedom may only be overridden in limited circumstances).

       The judgment is VACATED, and the case is REMANDED for further
proceedings. If on remand the district court determines that the intervention of a
court employee effectively prevented Holmes from refiling his lawsuit as directed,
the court shall order Holmes to supplement his “motion to reinstate” with the new
complaint he tried to file on February 17, 2005, and then allow the suit to proceed.
