                   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
Deputy Warden, Calipatria; C. G.
BUTLER, Captain, Calipatria;                   No. 07-55006
DENISE EDWARDS, Appeals
Coordinator, CCII, Calipatria;                  D.C. No.
                                             CV-03-00660-RTB
HARRIET FASOLO, Appeals
                                                OPINION
Coordinator, CCII, Calipatria; A.
TERHUNE, Correctional Counselor
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

        Before: J. Clifford Wallace, Jerome Farris and
           M. Margaret McKeown, Circuit Judges.

                              4315
4316   MARELLA v. TERHUNE
       Per Curiam Opinion
                    MARELLA v. TERHUNE                 4317




                        COUNSEL

Jeffrey T. Renz, Director, Montana Defender Project, Univer-
sity of Montana School of Law, Missoula, Montana, Attorney
4318                 MARELLA v. TERHUNE
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, Supervis-
ing Deputy Attorney General, Phillip Lindsay, Deputy Attor-
ney General, San Diego, California; Attorney for the
appellees.


                         OPINION

PER CURIAM:

   Marella appeals from the district court’s dismissal of his
civil rights action for failure to exhaust administrative reme-
dies, as required by the Prison Litigation Reform Act (PLRA),
42 U.S.C. § 1997e(a). The district court had jurisdiction pur-
suant to 28 U.S.C. §§ 1331, 1343 and 1367. We have jurisdic-
tion 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 judg-
ment was pending, the MJ requested that prison officials sup-
plement their motion with information regarding whether
Marella exhausted administrative remedies. The prison offi-
cials took the position that Marella had not exhausted admin-
                     MARELLA v. TERHUNE                   4319
istrative 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
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 neverthe-
less 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 sys-
tem. 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
4320                 MARELLA v. TERHUNE
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 rem-
edy 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
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 sub-
mitting 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) (empha-
sis added). The California Department of Corrections and
Rehabilitation Operating Manual directs the appeals coordina-
tor 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 neces-
sary forms and whether he had the ability to file during his
stay in the hospital and prison infirmary, or during the admin-
istrative lockdown. On remand, the district court should con-
sider 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
                     MARELLA v. TERHUNE                    4321
(9th Cir. 2005) (the PLRA “does not require exhaustion when
no pertinent relief can be obtained through the internal pro-
cess”). Marella was not required to “exhaust further levels of
review once he [had] . . . been reliably informed by an admin-
istrator 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
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.

   [3] Although Marella received a proper Rand notice earlier
(see Rand, 154 F.3d at 960-61), the question is whether a sec-
ond 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 reme-
dies.

  REVERSED AND REMANDED.
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