The following excerpt is from McGinnis v. Atkinson, Case No.: 1:11-cv-01337 LJO JLT (E.D. Cal. 2012):
the PLRA. Cal. Code Regs., tit 15, 3084.7(d)(3) (2011); Brodheim v. Cry, 584 F.3d 1262, 1265 (9th Cir. 2009). An appeal can be "cancelled" in several circumstances, including when it is not timely presented. Cal. Code Regs., tit 15, 3084.6(c)(4) (2011). When this occurs, the regulations set forth the procedure for challenging this cancellation decision. Cal. Code Regs., tit 15, 3084.7(c)(1) (2011).
The exhaustion requirement is not jurisdictional, but rather creates an affirmative defense that a defendant may raise in an unenumerated Rule 12(b) motion. Wyatt v. Terhune, 315 F.3d 1108, 1117-19 (9th Cir. 2003). The defendant bears the burden of raising and proving the absence of exhaustion. Id. at 1119. In deciding the motion, "the court may look beyond the pleadings and decide disputed issues of fact." Id. If the court concludes that the prisoner has not exhausted all of his available administrative remedies, "the proper remedy is dismissal of the claim without prejudice." Id. at 1120. If a complaint contains exhausted and unexhausted claims, "the court proceeds with the good and leaves the bad." Jones, 549 U.S. at 221.
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