                    NONPRECEDENTIAL DISPOSITION
                      To be cited only in accordance with
                              Fed. R. App. P. 32.1



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

                            Submitted February 21, 2007*
                             Decided February 26, 2007

                                      Before

                    Hon. FRANK H. EASTERBROOK, Chief Judge

                    Hon. RICHARD A. POSNER, Circuit Judge

                    Hon. TERENCE T. EVANS, Circuit Judge

No. 06-3816

OTIS L. THOMAS,                                Appeal from the United States
     Plaintiff-Appellant,                      District Court for the Southern
                                               District of Indiana, Indianapolis
      v.                                       Division

EKE KALU, et al.,                              No. 1:04-cv-02079-LJM-WTL
     Defendants-Appellees.
                                               Larry J. McKinney,
                                               Chief Judge.

                                    ORDER

       Indiana prisoner Otis Thomas brought suit pro se under 42 U.S.C. § 1983
alleging that medical staff at Pendleton Correctional Center disregarded his serious
medical needs in violation of the eighth amendment by refusing to order surgery for
his abdominal hernia. Thomas’s claim against Dr. Eke Kalu survived both initial
screening under 28 U.S.C. § 1915A and a motion to dismiss under Rule 12(b)(6), and
the district court allowed Thomas to add Dr. Malak Hermina and Dr. Shamsuddin


      *
       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. 06-3816                                                                      Page 2

Pracha as defendants. But after discovery ended, the district court granted the
defendants’ Rule 12(c) motion for judgment on the pleadings because Thomas’s
pleadings established that he failed to exhaust his administrative remedies.
Thomas appeals, challenging both the judgment and the district court’s refusal to
request counsel to represent him. We vacate the judgment and remand for further
proceedings.

        According to Thomas’s complaint, he has been awaiting surgery to repair his
hernia since he was arrested in 1996. When he arrived at Pendleton in 1997, an
unnamed doctor gave him a hernia belt and told him that he would not receive
surgery as long as he could “push it back in.” In 1999 Thomas complained of pain to
Dr. Pracha, who explained that it was “institutional policy” not to order surgery if
the hernia could be pushed back in. In June 2001 Thomas complained of pain to Dr.
Hermina, who refused to order surgery and again told Thomas to push the hernia
back in. Dr. Hermina also told Thomas to discontinue use of a hernia belt and put
him on a twenty-pound weight restriction. In April 2002 Thomas explained to Dr.
Pracha that it was difficult and excruciatingly painful to push the hernia back in.
Dr. Pracha did nothing for the pain and did not order surgery. Thomas says he
wrote letters and filed grievances, most of which never received a response. But in
one of the few responses, Dr. Kalu explained that “an alternative treatment plan”
for his hernia was “not indicated.” Thomas says the hernia, which had swollen to
the size of a baseball, caused him great pain and prevented him from exercising and
lifting weights. He could barely walk around the recreational track.

      Along with his complaint, Thomas submitted some (perhaps all) of his
correspondence with prison officials, including a November 2004 letter from Rose
Vaisvilas, identified in her letter as a “Nursing Director” at the Indiana
Department of Correction. In the letter, Vaisvilas explained to Thomas that she
would not review his treatment because he had not filed a “Step 5” grievance:

      [Y]ou indicate that you have a hernia that no one will examine and you
      indicate that you have written letters, filed grievances, and attempted
      to speak to facility staff but no one will listen to you. I have
      investigated you [sic] concern and learned that no health related step 5
      grievances have been reviewed by the central office health care staff
      and since all step 5 grievances are forwarded to the central office
      health services division, I must conclude that you have not pursued
      any grievances beyond the facility level.

      In their motion for judgment on the pleadings, the defendants argued that, in
submitting the Vaisvilas letter, Thomas established that he had not exhausted his
administrative remedies. They reasoned that, because the letter implies that the
grievance system “had at least five steps” and Thomas “had not submitted a Step
No. 06-3816                                                                    Page 3

Five Grievance,” he could not have possibly exhausted his administrative remedies
and thus is not entitled to relief. Thomas did not respond to the motion. The
district court accepted the defendants’ position and entered judgment for the
defendants, dismissing Thomas’s complaint without prejudice.

       Before turning to the merits, we must address our jurisdiction to entertain
Thomas’s appeal. Usually a dismissal without prejudice “does not qualify as an
appealable final judgment because the plaintiff is free to re-file the case.” Glaus v.
Anderson, 408 F.3d 382, 385 (7th Cir. 2005). But we recognize an exception where
“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.” Id. at
386. The defendants say that Thomas could not amend or re-file because he would
be time-barred, but that’s inaccurate because he alleged a continuing injury. Heard
v. Sheahan, 253 F.3d 316, 318 (7th Cir. 2001). Nevertheless, we consider the
judgment final because the district court showed that it was “finished with the case”
by dismissing the entire action. See Am. Nat’l Bank & Trust Co. v. Emerald Invs.
LP, 406 F.3d 867, 874-75 (7th Cir. 2005); Hill v. Potter, 352 F.3d 1142, 1144-45 (7th
Cir. 2003). Thus we proceed to the merits.

       We review de novo an entry of judgment on the pleadings. Moss v. Martin,
473 F.3d 694, 698 (7th Cir. 2007). A party may make the motion only after an
answer has been filed, and the court will grant the motion “[o]nly when it appears
beyond a doubt that the plaintiff cannot prove any facts to support a claim for relief
and there are no material issues of fact to be resolved.” Fed. R. Civ. P. 12(c); Moss,
473 F.3d at 698. Prisoners need not allege that they have exhausted administrative
remedies; rather, failure to exhaust is an affirmative defense. Jones v. Bock, 127
S.Ct. 910, 921 (2007); Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002).
But “when the existence of a valid affirmative defense is so plain from the face of
the complaint,” the prisoner’s complaint may be dismissed. Walker, 288 F.3d at
1010-11; see Jones, 127 S.Ct. at 920-21.

      Thomas maintains, as he alleged in the body of his complaint, that he
exhausted all available administrative remedies. He says that if he failed to comply
with the grievance policy, it was because his grievances went unanswered and he
was not provided with the necessary forms.

       We cannot agree with the district court that Thomas’s pleadings show that he
failed to exhaust his administrative remedies. True, the Vaisvilas letter he
submitted contains references to “step 5” of the grievance process, and Thomas did
not submit to the court a grievance labeled “step 5.” But in submitting the
Vaisvilas letter, Thomas did not vouch for the truth of its content. See Simpson v.
Nickel, 450 F.3d 303, 306 (7th Cir. 2006); Carroll v. Yates, 362 F.3d 984, 986 (7th
Cir. 2004). Thomas did not plead the “fact” that there is a “step 5” in the grievance
No. 06-3816                                                                    Page 4

process, see Carroll, 362 F.3d at 986; he submitted the letter to show the court how
the prison responded (or rather, did not respond) to his need for medical treatment.
Dismissal on the basis of “facts” contained in the letter is inappropriate because
Thomas did not “rel[y] upon it to form the basis for a claim or part of a claim.” Id.
The letter does not foreclose Thomas from later establishing facts that show he
followed the prison’s grievance process. Nor does it foreclose him from later
showing that the grievance process—including “step 5”—was unavailable to him.
See Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). Because Thomas could later
establish facts, consistent with his pleadings, that show he exhausted available
administrative remedies, his claims should not have been dismissed. See
Henderson v. Sheahan, 196 F.3d 839, 845-46 (7th Cir. 1999).

       We turn next to Thomas’s argument that the district court erred by twice
denying his request for counsel. The court denied his first request (filed after Dr.
Kalu filed his answer) because he had not shown that he made reasonable efforts to
recruit an attorney on his own. The court denied his second request (filed after Dr.
Hermina and Dr. Pracha answered) because Thomas had demonstrated competence
to pursue his claims, which the district court did not consider complex. While this
case may ultimately raise complex issues, see Greeno v. Daley, 414 F.3d 645, 658
(7th Cir. 2005), the district judge’s decision was sensible when made, and we cannot
say that he abused his discretion. Pruitt v. Mote, 472 F.3d 484, 488-89 (7th Cir.
2006).

       The judgment of the district court is VACATED, and the case is REMANDED
for further proceedings.
