FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEONARD MICHAEL MARELLA, 

Plaintiff-Appellant,

v.

C. A. TERHUNE, Director of the

California Department of

Corrections; R. M. HOUSTON, Chief No. 07-55006

Deputy Warden, Calipatria; C. G. D.C. No.

BUTLER, Captain, Calipatria; CV-03-00660-RTB

DENISE EDWARDS, Appeals  ORDER Coordinator, CCII, Calipatria; AMENDING HARRIET FASOLO, Appeals OPINION AND Coordinator, CCII, Calipatria; A. AMENDED TERHUNE, Correctional Counselor OPINION II, (A) Calipatria State Prison,

Facility “B”; M. K. ORMAND,

Correctional Counselor I,

Calipatria State Prison Facility

“B”,

Defendants-Appellees. 

Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, District Judge, Presiding

Argued and Submitted

January 16, 2009—San Francisco, California

Filed April 14, 2009

Amended June 5, 2009

Before: J. Clifford Wallace, Jerome Farris and

M. Margaret McKeown, Circuit Judges.

7035
Per Curiam Opinion

7036 MARELLA v. TERHUNE
COUNSEL

Jeffrey T. Renz, Director, Montana Defender Project, University of Montana School of Law, Missoula, Montana, Attorney

MARELLA v. TERHUNE 7037
for the appellant; Zachary Strong, Law Student, Missoula,

Montana, argued the case for the appellant; Sabrina Hansen,

Law Student, Missoula, Montana, was on the briefs for the

appellant. 

Edmund G. Brown Jr., Attorney General, David S. Chaney,

Chief Assistant Attorney General, Frances T. Grunder, Senior

Assistant Attorney General, Michelle Des Jardins, Supervising Deputy Attorney General, Phillip Lindsay, Deputy Attorney General, San Diego, California; Attorney for the

appellees.

ORDER

The opinion in the above-captioned matter filed on April

14, 2009, and published at 562 F.3d 983 (9th Cir. 2009), is

amended as follows: 

1. Slip op. page 4321, line 17 (after the carry-over

paragraph):

Insert as a new paragraph <The absence of a

proper administrative process for a prisoner to

appeal from an initial rejection of an appeal

does not abrogate the requirement that he comply with a prison’s procedural requirements. If

a prisoner had full opportunity and ability to file

a grievance timely, but failed to do so, he has

not properly exhausted his administrative remedies. See Woodford, 548 U.S. at 88. On remand,

if the district court finds that Marella had the

opportunity and ability to file his initial grievance timely, but failed to do so, his case should

be dismissed.>

Having made the foregoing amendment to the opinion, the

panel has unanimously voted to deny Appellees’ Petition for

7038 MARELLA v. TERHUNE
Rehearing, and the petition for clarification is DENIED as

moot. No further petitions for rehearing or rehearing en banc

will be accepted.

OPINION

PER CURIAM: 

Marella appeals from the district court’s dismissal of his

civil rights action for failure to exhaust administrative remedies, as required by the Prison Litigation Reform Act (PLRA),

42 U.S.C. § 1997e(a). The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343 and 1367. We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand. 

Marella, a prisoner at the Calipatria State Prison, filed a

complaint against prison officials under 42 U.S.C. § 1983,

alleging violations of his constitutional rights stemming from

a knife attack by his fellow inmates. Prison officials filed a

motion for summary judgment on grounds unrelated to

exhaustion of administrative remedies. The magistrate judge

(MJ) notified Marella under Rand v. Rowland, 154 F.3d 952

(9th Cir. 1998) (en banc), that he was required to oppose the

motion with evidence. While the motion for summary judgment was pending, the MJ requested that prison officials supplement their motion with information regarding whether

Marella exhausted administrative remedies. The prison officials took the position that Marella had not exhausted administrative remedies because his first formal grievance was

untimely filed. 

Prior to filing his complaint in federal court, Marella had

filed a grievance within the prison system, which the prison

rejected on procedural grounds. The history of Marella’s

appeal within the prison system is key to whether he

exhausted his administrative remedies, as required by the

MARELLA v. TERHUNE 7039
PLRA. Following the knife attack, Marella spent two days in

the hospital, subsequently moved to the infirmary, and finally,

was placed in administrative segregation. He contends that he

was unable to acquire and complete a grievance form during

that time. Following his release, thirty-three days after the

knife attack, he filed his grievance regarding the knife attack

with the prison. This grievance was filed at the first formal

level of review. The grievance was denied as untimely, and

the grievance form stated that he may only appeal the denial

if the reason for the denial was inaccurate. Marella nevertheless appealed the denial to the Director of Corrections (the

third and final level of review within the California prison

system), and was informed that his appeal was rejected

because he did not first complete a second level of review. 

In the federal court proceeding, the MJ concluded that

Marella had not exhausted administrative remedies because

his initial grievance was untimely filed, and determined that

there are no exceptions to the timely filing requirement. The

district court adopted the MJ’s Report and Recommendations,

and also held that Marella failed to exhaust administrative

remedies because he failed to appeal his grievance properly

through the third and final level of the prison grievance system. The district court dismissed Marella’s complaint without

prejudice. 

[1] The MJ and the district court (through its adoption of

the MJ’s Report and Recommendation) erred in concluding

that, as a matter of law, no exceptions to the timely filing

requirement exist. Marella contends that he was unable to file

his grievance timely because he did not have access to the

necessary forms and he did not have the ability to complete

them during the fifteen-day filing period; therefore, no remedy was available for him to exhaust properly. Marella was

required to “complete the administrative review process in

accordance with the applicable procedural rules, including

deadlines, as a precondition to bringing suit in federal court.”

Woodford v. Ngo, 548 U.S. 81, 88 (2006). The California

7040 MARELLA v. TERHUNE
prison system’s requirements “define the boundaries of proper

exhaustion.” See Jones v. Bock, 549 U.S. 199, 218 (2007).

The California Code of Regulations provides that an inmate

must submit an appeal within fifteen working days of the

event or decision being appealed, but the appeals coordinator

is only permitted to reject an appeal if “[t]ime limits for submitting the appeal are exceeded and the appellant had the

opportunity to file within the prescribed time constraints.”

Cal. Code Regs. tit. 15 §§ 3084.6(c) and 3084.3(c)(6) (emphasis added). The California Department of Corrections and

Rehabilitation Operating Manual directs the appeals coordinator to “ensure that the inmate or parolee had, in fact, the

opportunity to file in a timely manner.” Section 54100.8.1.

Thus, the prison’s regulations explicitly create an exception to

the timely filing requirement. If Marella was unable to file

within the fifteen-day filing period, his failure to file timely

does not defeat his claim. The MJ found that Marella was

only in the hospital for two nights, but the MJ did not make

factual findings as to whether Marella had access to the necessary forms and whether he had the ability to file during his

stay in the hospital and prison infirmary, or during the administrative lockdown. On remand, the district court should consider whether Marella had the opportunity to file within

fifteen days following the assault. 

[2] The district court also erred in dismissing Marella’s

complaint for failure to exhaust his administrative remedies

beyond the second level of the prison appeals system because

Marella had been informed that the appeals process was

unavailable to him. See Brown v. Valoff, 422 F.3d 926, 935

(9th Cir. 2005) (the PLRA “does not require exhaustion when

no pertinent relief can be obtained through the internal process”). Marella was not required to “exhaust further levels of

review once he [had] . . . been reliably informed by an administrator that no remedies are available.” See id. After Marella

filed his first level appeal, he received a form rejecting the

appeal because it was not timely filed and there was “no

explanation of why [he] did not, or could not, file in a timely

MARELLA v. TERHUNE 7041
manner.” The form also stated that “[t]his screening action

may not be appealed unless you allege that the above reason

is inaccurate.” Marella did not dispute that his appeal was

untimely, and he did not dispute that he had not explained

why he was unable to file in a timely manner. Thus, according

to the form, he was not permitted to appeal the decision.

Therefore, we reverse the district court’s dismissal of the case

for failure to appeal properly because the appeals process was

unavailable to him. 

The absence of a proper administrative process for a prisoner to appeal from an initial rejection of an appeal does not

abrogate the requirement that he comply with a prison’s procedural requirements. If a prisoner had full opportunity and

ability to file a grievance timely, but failed to do so, he has

not properly exhausted his administrative remedies. See

Woodford, 548 U.S. at 88. On remand, if the district court

finds that Marella had the opportunity and ability to file his

initial grievance timely, but failed to do so, his case should be

dismissed.

[3] Although Marella received a proper Rand notice earlier

(see Rand, 154 F.3d at 960-61), the question is whether a second Rand notice was required following the order requesting

supplemental briefing as to whether Woodford requires him to

provide evidentiary support to rebut defendants’ claim that he

had not exhausted administrative remedies. The question is

close, but we conclude fair notice requires more. The order

for supplemental briefing “inject[ed] renewed uncertainty and

complexity into the summary judgment procedure,” therefore,

the previously issued Rand notice did not effectively give

Marella fair notice that he should have submitted evidence

regarding exhaustion of remedies. See Wyatt v. Terhune, 315

F.3d 1108, 1115 (9th Cir. 2003). On remand, Marella should

be allowed to submit evidence regarding exhaustion of remedies. 

REVERSED AND REMANDED.

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