Seventh Circuit Holds that Failure to Raise Affirmative Defence Per FRCP Rule 8(c) Does Not Constitute Waiver

Per the Seventh Circuit in Curtis v. Timberlake, --- F.3d ----, 2005 WL 3728794 (7th Cir. Oct. 06, 2005):

[Appellant] contends that the magistrate judge erred in granting summary judgment because the guards failed to assert lack of exhaustion in their answers and therefore waived this affirmative defense. We disagree. Noncompliance with § 1997e(a) is an affirmative defense, Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir.2005); Massey v. Helman, 196 F.3d 727, 734-35 (7th Cir.1999), and Curtis is correct that Fed.R.Civ.P. 8(c) requires affirmative defenses to be raised in the pleadings. Nonetheless, we have held that a delay in asserting an affirmative defense waives the defense only if the plaintiff was harmed as a result. Williams v. Lampe, 399 F.3d 867, 870-71 (7th Cir.2005) (per curiam); Carter v. United States, 333 F.3d 791, 796 (7th Cir.2003). Curtis was not prejudiced; he was aware of the exhaustion issue even when he filed his complaint, and he confronted the defense in responding to the motion for summary judgment. Accordingly, there was no abuse of discretion in permitting the defense to be raised at summary judgment.