[DO NOT PUBLISH]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).
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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,
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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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