Perdue v. Johnson, et al

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
December 17, 2004
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 04-50192
BEVERLY PERDUE
Plaintiff - Appellant
VERSUS
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION; WILLIAM W. SULLIVAN, JR.
Defendants - Appellees
Appeal from the United States District Court
For the Western District of Texas
W-02-CV-140
Before REAVLEY, DAVIS, and WIENER, Circuit Judges.
PER CURIAM:*
After reviewing the record and considering the argument of
counsel and the briefs of the parties we affirm the dismissal of
both remaining defendants, Johnson and Sullivan.
The only claim Perdue has remaining against Johnson is a claim
for attorney’s fees which she contends she is entitled to because

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medical care was provided to Perdue only after she filed suit. The
record does not reveal, however, that the suit was served before
medical care was provided to Perdue or that the suit provided the
impetus for the state providing that care.
As to defendant Sullivan, the predicate for Perdue’s suit
against him was the excessive force Sullivan used in subduing her.
We agree with the district court that Perdue was required to
exhaust her administrative remedies before filing suit against
Sullivan. Although the state did not raise the exhaustion defense
before the court’s deadline for filing motions, the district court
did not abuse its discretion in lifting that deadline and allowing
the defense to be asserted at a later date. Perdue has demonstrated
no legal prejudice from the district court’s decision allowing
Sullivan to raise his exhaustion defense because at the time the
defense was asserted Perdue had ample time to exhaust
administrative remedies as to this claim and file suit before the
statute of limitations ran.
AFFIRMED.

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