Opinion
ORDER OF DISMISSAL
CHARLES BREYER, District Judge.
Plaintiff, a prisoner at the Santa Clara County Jail, has filed a pro se complaint for damages under 42 U.S.C. § 1983 alleging that on June 6, 2005 jail officials used of excessive force against him and denied him medical care for two days. Plaintiff also seeks leave to proceed in forma pauperis under 28 U.S.C. § 1915. He has not exhausted the Santa Clara County Department of Corrections' administrative process, however.
The Prison Litigation Reform Act of 1995 amended 42 U.S.C. § 1997e to provide 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 once within the discretion of the district court, exhaustion in prisoner cases covered by § 1997e(a) is now mandatory. Porter v. Nussle , 534 U.S. 516, 524 (2002). All available remedies must now be exhausted; those remedies "need not meet federal standards, nor must they be plain, speedy, and effective.'" Id. (citation omitted). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Id.; Booth v. Churner , 532 U.S. 731, 741 (2001). Similarly, exhaustion is a prerequisite to all prisoner suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter , 534 U.S. at 532.
Nonexhaustion under § 1997e(a) is an affirmative defense which should be brought by defendant(s) in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12 (b). Wyatt v. Terhune , 315 F.3d 1108, 1119 (9th Cir. 2003). However, a complaint may be dismissed by the court for failure to exhaust if a prisoner "conce[des] to nonexhaustion" and "no exception to exhaustion applies." Id. at 1120. Here, plaintiff alleges that he filed an inmate grievance and that it is "being addressed & is in progress." A copy of the grievance form (attached to the complaint) confirms that shortly before plaintiff filed his action he was advised that his grievance was being referred to "Level III" and that it is "being addressed and is in progress." Plaintiff must await a final Level III decision before filing suit. He presents no extraordinary circumstances which might compel that he be excused from doing so. Cf. Booth , 532 U.S. at 741 n.6 (courts should not read "futility or other exceptions" into § 1997e(a)).
Accordingly, plaintiff's request to proceed in forma pauperis (docs # 2 & 4) is DENIED and the complaint is DISMISSED without prejudice to refiling after exhausting the Santa Clara Department of Corrections' administrative process. See McKinney v. Carey , 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (action must be dismissed without prejudice unless prisoner exhausted available administrative remedies before he filed suit, even if prisoner fully exhausts while the suit is pending).
The clerk shall enter judgment in accordance with this order and close the file. No fee is due.
SO ORDERED.