                                                     [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                   FILED
                                                       U.S. COURT OF APPEALS
                            No. 10-14987                 ELEVENTH CIRCUIT
                        Non-Argument Calendar                JUNE 2, 2011
                      ________________________                JOHN LEY
                                                               CLERK

                 D. C. Docket No. 4:09-cv-10083-KMM

DONALD BRUCE,
ROBERT PIERCE,
                                                        Plaintiffs-Appellants,

                                 versus

PENNY PHELPS,
RICHARD ROTH,
NURSE A,
NURSE B,
                                                       Defendants-Appellees,

OFFICER BARNEY,
                                                                Defendant.


                      ________________________

               Appeal from the United States District Court
                  for the Southern District of Florida
                      ________________________

                             (June 2, 2011)

Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.
PER CURIAM:

      In August 2008, Donald Bruce was a convicted inmate and Robert Pierce

was a pretrial detainee at the Monroe County Detention Center in Monroe County,

Florida. Between the morning of August 9 and the afternoon of August 11,

Detention Center trustees were painting the interior of Cellblock C, which was

under the supervision of Captain Penny Phelps. The painting created fumes and

Bruce and Pierce (and other inmates) were exposed. They suffered nausea,

burning sensation in the eyes, and disorientation and had trouble breathing. They

complained to Phelps and other Detention Center officials and were eventually

permitted to go to the “open-air rec room,” on the afternoon of August 11.

      Bruce and Pierce brought this action against Phelps (and others) under 42

U.S.C. § 1983, claiming that their exposure to the fumes during the August 9 to 11

painting episode infringed their rights under the Eighth and Fourteenth

Amendments to the Constitution and seeking legal and equitable relief. Their

complaint alleged that they had exhausted their administrative remedies. Phelps’s

answer denied that allegation (among others). During discovery and the taking of

plaintiffs’ depositions, defense counsel learned that neither Bruce nor Pierce had

filed grievances against Phelps (for their exposure to the fumes) in accordance

with the grievance procedure set out in the Monroe County Inmate Handbook

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(“Handbook”). Armed with that knowledge, counsel promptly moved the district

court for leave of court to amend Phelps’s answer to the complaint to assert, as an

affirmative defense, that neither plaintiff had exhausted his administrative

remedies as provided in the Prison Litigation Reform Act of 1995, 42 U.S.C. §

1997(e)a (2006), to-wit:

      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.

The court granted the motion, and denied plaintiffs subsequent motion to strike it

as untimely (given the late stage of the litigation).

      Phelps moved the court for summary judgment on the basis of the

affirmative defense: plaintiffs had not exhausted their administrative remedies.

The district court, in a comprehensive order entered on September 28, 2010,

agreed, granting Phelps summary judgment because the record conclusively

established that neither plaintiff had exhausted his administrative remedies.

      Bruce and Pierce appeal the judgment entered pursuant to that order. They

contend that the district court abused its discretion in granting Phelps leave to

amend her answer, and in denying their subsequent motion to strike her

affirmative defense, and ask that the case be remanded for trial on the allegations



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of the complaint and Phelps’s initial answer (without the affirmative defense).

Assuming that the affirmative defense stands, they contend that material issues of

fact remain to be litigated as to whether their failure to exhaust their remedies as

set out in the Handbook should bar their claims. Exhaustion should be excused,

they argue, because they had no access to the forms needed to file a grievance;

they were in a “lock down” at the time the painting was going on. They also seem

to suggest, if not argue, that formal Handbook exhaustion wasn’t required because

Phelps was on notice from the outset that they were, in effect, presenting against

her the grievances they subsequently spelled out in the instant complaint as the

bases for their § 1983 claims. Phelps had such notice because she was present

during the painting, as the supervisor of the inmate trustees doing the work, was

aware of the fumes, and heard plaintiffs and other inmates beating on their cell

doors and yelling that they could not breathe.

      We are not persuaded that the district court abused its discretion in granting

Phelps leave to amend her answer to assert the affirmative defense at issue. The

court acted well within its discretion. We are likewise not persuaded that material

issues of fact exist which precluded summary judgment.

      AFFIRMED.




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