How have the courts dealt with the issue of Respondent's failure to respond to Appeal 2095?

failure to respond to the appeal within 30 days), because it is clear that plaintiff failed to exhaust this claim. Plaintiff filed this lawsuit just 22 days after he submitted Appeal 2095, while the appeal was still pending in the appeals office at the First Level of review.¹³ It is therefore plain from the face of the complaint and the materials submitted in support of summary judgment, that plaintiff did not exhaust this appeal prior to filing suit. See McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002) (per curiam) (the exhaustion requirement is "mandatory," and "clearly contemplates exhaustion prior to the commencement of the action as an indispensable requirement"). Accordingly, the court finds that no exhausted or excused appeal put defendant sufficiently on notice of the portion of his Section 1983 claim that relates to his request for "soft shoes."