                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit               December 17, 2004

                                                        Charles R. Fulbruge III
                                                                Clerk
                            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

  *
   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opinion should not be published and is not precedent except under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.
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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