                   FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

ROBERT JOSEPH PANARO,                    
                  Plaintiff-Appellant,
                  v.
THE CITY OF NORTH LAS VEGAS, a
political subdivision; NORTH LAS
VEGAS DETENTION CENTER; KEN
ELLINGSON, individually and in his
official capacity as Director of the           No. 04-15750
North Las Vegas Detention
Center; Corrections Officers                    D.C. No.
                                             CV-98-01634-PMP
HOLLINS, Sgt. K. KITCHENS,
PRUNCHAK, COLLINS, and Lt. LIANI,               OPINION
individually and in their official
capacity as Correctional Officers
of the NORTH LAS VEGAS
DETENTION CENTER; DOE DETENTION
OFFICERS 1 through X, inclusive;
and JOHN DOES 1 through X,
inclusive,
              Defendants-Appellees.
                                         
        Appeal from the United States District Court
                 for the District of Nevada
          Philip M. Pro, District Judge, Presiding

                 Argued and Submitted
       November 18, 2005—San Francisco, California

                   Filed December 20, 2005

       Before John T. Noonan, Pamela A. Rymer, and
             Ronald M. Gould, Circuit Judges.

                             16629
16630   PANARO v. CITY OF NORTH LAS VEGAS
            Opinion by Judge Gould
             PANARO v. CITY OF NORTH LAS VEGAS          16631


                         COUNSEL

Cal J. Potter, III, Las Vegas, Nevada, for plaintiff-appellant
Robert Joseph Panaro.
16632           PANARO v. CITY OF NORTH LAS VEGAS
Todd L. Bice, Las Vegas, Nevada, for defendants-appellees
City of North Las Vegas, et al..


                               OPINION

GOULD, Circuit Judge:

   We consider whether a prisoner may constructively exhaust
his or her administrative remedies under the Prison Litigation
Reform Act (PLRA)1 by participating in an internal affairs
investigation when the prisoner has not taken advantage of an
internal grievance procedure. We hold that participating in an
internal affairs investigation is not sufficient to satisfy the
exhaustion requirement of the PLRA.

                                     I2

   Plaintiff-Appellant Robert Joseph Panaro, Sr., (Panaro)
appeals the district court’s order granting summary judgment
in favor of all defendants.

   On October 28, 1998, Panaro was incarcerated as a pre-trial
detainee at the North Las Vegas Detention Center. The con-
troversy underlying this suit arose after Officer Gilbert Hol-
lins, a corrections officer at the facility, accompanied a prison
trustee who was distributing fresh linens to the prisoners.
Panaro, who was in his cell at the time, requested a fresh
towel. The trustee denied Panaro’s request, stating that they
were out of towels. Panaro believed that the trustee and Offi-
  1
     “No action shall be 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 until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
   2
     Because defendants prevailed on summary judgment, the facts are
taken in the light most favorable to Panaro. Olsen v. Idaho State Bd. of
Medicine, 363 F.3d 916, 922 (9th Cir. 2004).
                 PANARO v. CITY OF NORTH LAS VEGAS                    16633
cer Hollins did in fact have fresh towels, but that Officer Hol-
lins, an African-American, was discriminating against Panaro,
an Italian-American.

   Because Panaro did not receive a fresh towel, he asked for
a grievance form to initiate the detention center’s internal
grievance procedure.3 Panaro alleges that he asked for a griev-
ance form twice, and that both times Officer Hollins
responded with vulgarities. Panaro alleges that in response to
his third request, Officers Hollins and Donald Collins, with
Officers Kary Kitchens, Filipo Liani, and Eli Prunchak look-
ing on, entered Panaro’s cell and beat Panaro, injuring his
neck and aggravating a prior skull fracture. After the beating
Panaro was handcuffed and removed from his cell. The offi-
cers ordered Panaro to get down on his knees, and at that time
Officer Hollins stuffed several grievance forms down
Panaro’s shirt. The grievance forms fell out of Panaro’s shirt
before he was placed in a cell next door to his original cell.

   After a hearing, Panaro was disciplined for his role in the
altercation with the officers. At the hearing he was informed
of his “right to appeal the decision of the hearing officer by
means of the Grievance Procedure to the Deputy Chief of
Operations,” but Panaro did not appeal that decision. Nor did
Panaro at any time file a grievance form, either over the fail-
ure of Officer Hollins and the trustee to give Panaro a towel
or over the ensuing altercation and beating.4
  3
     The detention center has a three-step grievance process. The initial step
is a review of the prisoner’s completed grievance form by a section super-
visor, who must give a written decision to the prisoner. If the prisoner is
unsatisfied, he or she may appeal to the deputy chief of the detention cen-
ter by filing an additional written form that sets forth the basis for the
appeal. The deputy chief issues a written decision, which the prisoner can
appeal to the chief of the detention center. The chief’s written decision is
final.
   4
     After the district court granted summary judgment in favor of all
defendants on the section 1983 claim, Panaro moved to amend his com-
plaint, claiming that he had new evidence indicating that he had filed a
16634           PANARO v. CITY OF NORTH LAS VEGAS
  Apart from the disciplinary action against Panaro, Panaro
participated in an internal affairs investigation against Officer
Hollins by submitting to a recorded interview. Officer Hollins
was disciplined for his role in the incident.

  On November 16, 1998, less than a month after the inci-
dent, Panaro filed suit in federal court including claims pursu-
ant to 42 U.S.C. § 1983 and state tort law. The district court
granted Defendants’ motion for summary judgment on the
section 1983 claims on October 23, 2001, and on May 2,
2002, the district court granted Defendants’ motion for sum-
mary judgment on all state law claims except those against
Officer Hollins. The state law claims against Officer Hollins
went to trial. The jury returned a defense verdict, and on
March 31, 2004, the district court entered a judgment in favor
of Officer Hollins. This appeal concerns the summary judg-
ment for all defendants on the section 1983 claim.

                                     II

   The district court’s decision on summary judgment is
reviewed de novo. Balint v. Carson City, 180 F.3d 1047, 1050
(9th Cir. 1999) (en banc).

                                    III

   Before addressing whether a prisoner’s participation in an
internal affairs investigation satisfies the administrative
exhaustion requirement of the PLRA, we first consider two
preliminary issues.

grievance form. The district court denied the motion, because “The ‘new’
evidence was at all times in the possession of Plaintiff, and can not be con-
sidered newly discovered for purposes of Fed. R. Civ. P. 60(b).” Because
Panaro does not appeal the district court’s order denying the motion to
amend the complaint, Panaro’s “new” evidence is not before us. The
record in this appeal does not indicate that Panaro filed a grievance form.
                PANARO v. CITY OF NORTH LAS VEGAS                    16635
   The first issue is whether the district court erred in allowing
Defendants to raise the affirmative defense that Panaro did
not exhaust his administrative remedies at the summary judg-
ment stage, rather than in Defendants’ responsive pleadings.
Panaro relies on Fed. R. Civ. P. 8(c), which provides: “In
pleading to a preceding pleading, a party shall set forth affir-
matively . . . any other matter constituting an avoidance or
affirmative defense.”

   [1] After Panaro filed suit, and after Defendants had
answered, the Supreme Court decided Booth v. Churner, 532
U.S. 731 (2001), which held that a section 1983 plaintiff seek-
ing money damages is required to exhaust administrative rem-
edies even if money damages are unavailable through the
administrative grievance process. Id. 733-734. Because the
affirmative defense of administrative exhaustion was unavail-
able to Defendants when they responded to Panaro’s complaint,5
because a defendant may raise an affirmative defense at the
summary judgment stage as long as the plaintiff does not suf-
fer prejudice, Paine v. City of Lompoc, 265 F.3d 975, 981 n.1
(9th Cir. 2001), and because Panaro does not allege prejudice
here, the district court properly allowed Defendants to present
the affirmative defense at the summary judgment stage.
   5
     The Ninth Circuit had not squarely addressed this issue in the context
of section 1983 actions at the time Panaro filed this suit. However, shortly
before Panaro filed his complaint we decided Lunsford v. Jumao-As, 155
F.3d 1178, 1178 (9th Cir. 1998) (holding that the PLRA did not require
administrative exhaustion in suits for money damages under Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971), when the administrative
grievance process only offered injunctive relief). Because “Actions under
§ 1983 and those under Bivens are identical save for the replacement of a
state actor under § 1983 by a federal actor under Bivens,” Van Strum v.
Lawn, 940 F.2d 406, 409 (9th Cir. 1991), it is a reasonable position,
advanced by both parties here, that the exhaustion requirement of the
PLRA did not apply to suits for money damages at the time that Panaro
filed suit. After Panaro filed suit, we confirmed, without the prescience to
anticipate the Supreme Court’s decision in Booth, that the PLRA did not
require administrative exhaustion if a section 1983 suit sought only money
damages, and money damages were unavailable through the administra-
tive process. Rumbles v. Hill, 182 F.3d 1064, 1069 (9th Cir. 1999).
16636           PANARO v. CITY OF NORTH LAS VEGAS
   [2] Second, Panaro agues that there was a genuine issue of
material fact as to whether he had access to the grievance pro-
cess. Although the denial of Panaro’s initial request for a
grievance form precipitated the altercation and beating, the
record does not indicate that Panaro sought to file a grievance
form taking advantage of the detention center’s administrative
grievance procedure after the incident at issue here.6 Nor does
Panaro allege that the detention center’s grievance process
was systematically unavailable to him. To the contrary, after
the incident Panaro received a disciplinary hearing at which
he was told of his right to file a grievance. There was no gen-
uine issue of material fact regarding Panaro’s access to the
grievance process.

                                   IV

   Panaro argues that he constructively exhausted his adminis-
trative remedies by participating in an internal affairs investi-
gation. In assessing this argument, we start with the language
of the PLRA, which states: “No action shall be brought . . .
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) (emphasis added). Thus the
issue raised by Panaro’s argument is whether his participation
in the internal affairs investigation of Officer Hollins can be
considered to have exhausted Panaro’s available administra-
tive remedies within the meaning of the PLRA.
  6
    Because, based on the record before us, Panaro never filed a grievance,
this case is distinguishable from Ngo v. Woodford, 403 F.3d 620, 631 (9th
Cir. 2005), cert. granted, 74 U.S.L.W. 3301 (U.S. Nov. 14, 2005) (No. 05-
416) (holding that a prisoner exhausted his administrative remedies even
though his grievance was untimely). The question presented to the United
States Supreme Court is: “Does a prisoner satisfy the Prison Litigation
Reform Act’s administrative exhaustion requirement by filing an untimely
or otherwise procedurally defective administrative appeal?” Woodford v.
Ngo, No. 05-416 (U.S.), http://www.supremecourtus.gov/qp/05-
00416qp.pdf.
               PANARO v. CITY OF NORTH LAS VEGAS                 16637
   [3] It is an issue of first impression in our Circuit whether
a prisoner’s participation in an internal investigation of offi-
cial conduct should be considered equivalent to exhausting a
detention center’s available administrative grievance proce-
dure. But we are bound by the literal command of the PLRA,
which precludes an action by a prisoner “until such available
administrative remedies as are available have been exhaust-
ed.” 42 U.S.C. § 1997e(a). Although the internal affairs inves-
tigation into Officer Hollins’ conduct could, and did, result in
adverse action against Officer Hollins, Panaro has not alleged
that a remedy was available to him through that process. See
Booth, 532 U.S. at 736 n.4 (“Without the possibility of some
relief, the administrative officers would presumably have no
authority to act on the subject of the complaint, leaving the
inmate nothing to exhaust.”). The only potential remedies
available to Panaro were through the administrative grievance
procedure, and he did not initiate, let alone exhaust, his
administrative remedies through that procedure. Because the
PLRA requires that inmates exhaust their available adminis-
trative remedies, and because Panaro did not exhaust his
administrative remedies here, the district court properly
granted summary judgment in favor of Defendants.

   [4] Our conclusion comports with Thomas v. Woolum, 337
F.3d 720 (6th Cir. 2003), which addressed this same issue in
substance. The Sixth Circuit in Thomas considered whether a
prisoner exhausted his administrative remedies by “participat-
ing fully in the prison’s internal investigation.” Id. at 734. The
court held that “ ‘the exhaustion requirement in § 1997e(a) is
directed at exhausting the prisoner’s administrative reme-
dies,’ and that Use of Force7 or other investigations do not sat-
isfy the PLRA’s dictates.” Id. at 734 (quoting Freeman v.
Francis, 196 F.3d 641, 644 (6th Cir. 1999). The Sixth Circuit
  7
   The Sixth Circuit explained in Thomas that the procedure it described
as “Use of Force” was an investigation by a “Use of Force Committee,”
which investigated whether a Correctional Officer “used an inappropriate
amount of force” when the officer beat a handcuffed inmate. Id. at 723.
16638        PANARO v. CITY OF NORTH LAS VEGAS
reasoned that “In determining whether the inmate has
exhausted his or her remedies, we thus look to the inmate’s
grievance, not to other information compiled in other investi-
gations.” Id. We conclude that the Thomas court’s reasoning
is persuasive, and we adopt the rule that participating in an
internal affairs investigation does not by itself satisfy the
exhaustion requirement of the PLRA.

   [5] The PLRA squarely controls our decision. It represents
a Congressional judgment that the federal courts may not con-
sider a prisoner’s civil rights claim when a remedy was not
sought first in an available administrative grievance proce-
dure. Panaro was required to present a grievance to the offi-
cials responsible for maintaining the detention center before
he could bring his action against the defendants. We hold that
Panaro’s participation in the internal investigation of Officer
Hollins’ conduct cannot be considered to be equivalent to
Panaro’s assertion of a grievance in the administrative proce-
dure available at the detention center.

  AFFIRMED.
