The opinion of the court was delivered by: Susan Oki Mollway United States District Judge
ORDER DISMISSING AMENDED COMPLAINT AND DENYING MOTIONS FOR TEMPORARY RESTRAINING ORDER AS MOOT
Plaintiff Victor Rodella is a prisoner proceeding pro se. On September 29, 2008, Rodella filed a Complaint under 42 U.S.C. § 1983, alleging that he had been physically and sexually assaulted by correctional officers Terry Jackson and Gary Hibbits. Other Defendants named in the Complaint were correctional officers J. Flores and Sergeant Marsh, as well as the High Desert State Administration Segregation Unit. Rodella admits that, as of the time he filed the Complaint, he had not completed the prison grievance procedure for his claims. See Complaint (Sept. 29, 2008).
On October 17, 2008, Rodella filed a motion for temporary restraining order. This motion sought to enjoin further harassing conduct by Jackson and Hibbits. It stated that Rodella "will also Exhaust [his] administrative remedies through internal affairs." This case was not assigned to this judge at the time this motion was filed.
On December 29, 2008, Rodella filed another Complaint, which this court construes as an Amended Complaint, that names Jackson, Hibbits, Flores, Marsh, Scott Rowaly, Rudy Celis, Eric Calison, Cathy Palasses as Defendants. This Amended Complaint, also brought under 42 U.S.C. § 1983, sought relief from the alleged harassment Rodella suffered as an inmate. See Amended Complaint (Dec. 29, 2008).
On January 5, 2009, this matter was reassigned to this judge.
On January 14, 2009, Rodella filed a second motion for temporary restraining order. This motion seeks to enjoin Jackson and Hibbits from allegedly harassing Rodella. Rodella contends that he was physically and sexually assaulted and forced to wear a pink jump suit, while other inmates in his unit wore white jump suits.
Because Rodella failed to exhaust his administrative remedies before filing his original Complaint, the court dismisses this matter and denies as moot his motions for temporary restraining orders. This dismissal is without prejudice, which means that Rodella may file another lawsuit arising out of the same facts, assuming, of course, that he first properly exhausts his administrative remedies. This dismissal counts as one strike under 28 U.S.C. § 1915(g).
The Prison Litigation Reform Act of 1995 ("PLRA"), as amended, 42 U.S.C. § 1997e, provides that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Although this court at one time had discretion to permit a case to proceed without exhaustion, exhaustion in prisoner cases covered by § 1997e(a) is now mandatory. Woodford v. Ngo, 548 U.S. 81, 85 (2006).
Exhaustion is a prerequisite to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter v. Nussle, 534 U.S. 516, 532 (2002); see also McKinney v. Carey, 311 F.3d 1198, 1199-00 (9th Cir. 2002) (per curiam). All available remedies must be exhausted; those remedies "need not meet federal standards, nor must they be 'plain, speedy, and effective.'" McKinney, 311 F.3d at 1199 (citation omitted). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is still a prerequisite to bringing suit. Id.; accord Booth v. Churner, 532 U.S. 731, 741 (2001).
A prisoner's failure to exhaust is generally considered an affirmative defense that defendants have the burden of both raising and proving. Jones v. Bock, 549 U.S. 199, 216 (2007) ("We conclude that failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints."); Brown v. Valoff, 422 F.3d 926 (9th Cir. 2004) (§ 1997e(a) is an affirmative defense); Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) ("§ 1997e(a) creates a defense-defendants have the burden of raising and proving the absence of exhaustion.").
However, when the failure to exhaust is clear from the complaint itself, a court is authorized to dismiss it sua sponte. This authorization may be derived from several sources, including, for cases such as the present one in which the plaintiff has requested in forma pauperis status, the in forma pauperis statute. See Bock, 549 U.S. at 214 (recognizing failure to state a claim "as grounds for sua sponte dismissal of in forma pauperis cases); 28 U.S.C. § 1915(e)(2)(B)(ii) ("the court shall dismiss the case at any time if the court determines that . . . (B) the action or appeal . . . (ii) fails to state a claim on which relief may be granted"). This court has also been charged with screening civil complaints brought by prisoners that seek redress from a governmental entity or its employee and may sua sponte dismiss such complaints for failure to state a claim upon which relief may be granted. See Bock, 549 U.S. at 214 (recognizing the court's power to sua sponte dismiss a civil claim brought by a prisoner during the screening process); 28 U.S.C. § 1915A(b)(1) ("the court shall . . . dismiss the complaint, or any portion of the complaint, if the complaint--(1) . . . fails to state a claim upon which relief may be granted"); 42 U.S.C. § 1997e(c)(1) ("The court shall on its own motion . . . dismiss any action brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility if the court is satisfied that the action . . . fails to state a claim upon which relief can be granted . . . .").
In Bock, 549 U.S. at 215, the Supreme Court recognized that a "complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief." The Supreme Court noted that, if the allegations, taken as true, show that the complaint is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim, even though a statute of limitations is an affirmative defense. Id. Analogously, when, as here, a prisoner plaintiff pleads in his or her complaint that he or she has not exhausted his or her administrative remedies, the complaint, taken as true, demonstrates ...