
    Beverly PERDUE, Plaintiff-Appellant v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division; William W. Sullivan, Jr., Defendants-Appellees.
    No. 04-50192.
    United States Court of Appeals, Fifth Circuit.
    Decided Dec. 17, 2004.
    Michael Miles Simpson, Austin, TX, for Plaintiff-Appellant.
    Matthew Tepper, Assistant Attorney-General, Office of the Attorney General for the State of Texas, Austin, TX, for Defendant-Appellee.
    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 medical care was provided to Per-due 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. Athough 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. Per-due 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. 
      
       Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cm. R. 47.5.4.
     