                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________
                                                              FILED
                                                         U.S. COURT OF
                                 No. 04-15120               APPEALS
                            Non-Argument Calendar      ELEVENTH CIRCUIT
                          ________________________        JUNE 17, 2005
                                                        THOMAS K. KAHN
                     D. C. Docket No. 01-00030-CV-3-MCR      CLERK

CARLOS GREEN,

                                                          Plaintiff-Appellee,

                                      versus

J. K. SCHWARTZ,
P. J. DOREMUS,

                                                          Defendants-Appellants.

                          ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         _________________________
                                (June 17, 2005)

Before BIRCH, BARKETT and COX, Circuit Judges.

PER CURIAM:

      Plaintiff Carlos Green filed suit pursuant to 42 U.S.C. § 1983 against security

officers and medical personnel at the Santa Rosa Correctional Institution where
Plaintiff was confined, alleging violations of the Eighth Amendment. After trial, the

jury returned a verdict in favor of Green and against two of the defendants, J.K.

Schwartz and Patrick Doremus (“Defendants”). Schwartz and Doremus argue that

the district court erred in “permitting unexhausted claims to proceed to trial,” and by

denying Defendants’ motion for judgment as a matter of law. We affirm.

      Pursuant to 42 U.S.C. § 1997e, a prisoner may not bring any suit with respect

to prison conditions “until such administrative remedies as are available are

exhausted.” This requirement applies to all prisoners’ suits filed after April 26, 1996.

See Higginbottom v. Carter, 223 F.3d 1259 (11th Cir. 2000); Alexander v. Hawk, 159

F.3d 1321 (11th Cir. 1998).

      The Florida Department of Corrections (“DOC”) provides a three-step

grievance procedure. See Chandler v. Crosby, 379 F.3d 1278, 1287-88 (11th Cir.

2004); FLA. ADMIN. CODE ANN. § 33-103.005 ) .007.               However, emergency

grievances and grievances of a sensitive nature may be filed directly with the

warden’s office or with the Office of the Secretary of the DOC.              Id. § 33-

103.006(3)(a), (3)(d). If an emergency or sensitive nature grievance is not accepted,

it is returned to the inmate with instructions to resubmit the grievance through the

normal three-step process. Id. § 33-103.006(4); § 33-103.007(6)(e).




                                           2
      The incidents on which Green based his complaint occurred at the Santa Rosa

Correctional Institution on November 21, 2000. Green filed an emergency grievance

on January 8, 2001, complaining of abusive conduct by Doremus. An affidavit

attached to his grievance further described the events of November 21. Green

received the following response on January 16, 2001:

      Your appeal has been reviewed and evaluated. The issue of your
      complaint has been referred to the investigation section of the Office of
      the Inspector General for appropriate action. Upon completion of
      necessary action, information will be provided to appropriate
      administrators for final determination and handling.

      As action has been initiated, you may consider your appeal approved
      from that standpoint.

(Appellee’s Br. at 9.) Green filed this civil action three days later on January 19,

2001. The investigation initiated by his grievance was not completed until June 2001.

      Defendants argue that Plaintiff did not exhaust his administrative remedies

prior to filing suit. Plaintiff argues that even if his suit was premature, Defendants

waived their rights to raise his failure to exhaust his administrative remedies as a

defense.

      Both Doremus and Schwartz listed Green’s failure to exhaust his remedies as

an affirmative defense in their Answer to Green’s Fourth Amended Complaint. No

Rule 56 motion grounded in this affirmative defense was filed until August 11, 2004,



                                          3
and the court found this motion untimely. Nor did either Defendant raise the

exhaustion of administrative remedies defense in a Rule 50 motion for judgment as

a matter of law.         Though we have not yet decided whether exhaustion of

administrative remedies under § 1997e is jurisdictional,1 Doremus and Schwartz

concede, in this appeal, that it is not. (Appellants’ Reply Br. at 1.) Therefore, the

Defendants have not preserved the exhaustion issue for our review.

       Defendants also argue that the district court erred in denying their motion for

judgment as a matter of law on the grounds that Plaintiff did not present sufficient

evidence at trial that he suffered any physical injury. We disagree. Having reviewed

the record, we agree with the district court that Green presented sufficient evidence

for the jury to have determined that he suffered more than de minimus injuries.

       AFFIRMED.




       1
           This Circuit has noted, however, that most courts that have considered the issue have
concluded that § 1997e is not a jurisdictional mandate. Chandler, 379 F.3d at 1286 n.16. Many of
our sister circuits have expressly held that failure to exhaust administrative remedies under § 1997e
is an affirmative defense which must be proved by the defendant. See Wyatt v. Terhune, 315 F.3d
1108, 1119 (9th Cir. 2003); Casanova v. Dubois, 304 F.3d 75, 77 n.3 (1st Cir. 2002); Ray v. Kertes,
285 F.3d 287, 295 (3d Cir. 2002); Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir. 2001); Perez v.
Wis. Dep’t of Corr., 182 F.3d 532, 536 (7th Cir. 1999); Jenkins v. Haubert, 179 F.3d 19, 29 (2d Cir.
1999).

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