FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LONNIE CLARK WILLIAMS, JR., No. 13-56004
Plaintiff-Appellant,
D.C. No.
v. 3:12-cv-00113-
BTM-RBB
DANIEL PARAMO, Warden; R.
OLSON, Correctional Counselor II;
E. MARRERO, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Argued and Submitted
May 15, 2014—Pasadena, California
Filed January 7, 2015
Before: Harry Pregerson, Stephen Reinhardt, and
Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Reinhardt
2 WILLIAMS V. PARAMO
SUMMARY*
Prisoner Civil Rights
The panel granted a prisoner’s request to proceed in
forma pauperis on appeal, and vacated the district court’s
summary judgment and remanded for further proceedings on
the issue of whether the prisoner exhausted her administrative
remedies under the Prison Litigation Reform Act.
The panel held that under the Prison Litigation Reform
Act, a prisoner who has three strikes under 28 U.S.C.
§ 1915(g), and who has demonstrated in the district court
that she falls within the imminent danger exception in order
to proceed in forma pauperis must still qualify under this
exception at the time of appeal by alleging a continued
existence of imminent danger at the time the notice of appeal
is filed. The panel further concluded that the standard set
forth in Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir.
2007), applies in determining whether a prisoner has shown
an imminent danger on appeal. Under Andrews, a prisoner
may meet this requirement by alleging that prison officials
continue with a practice that has injured her or others
similarly situated in the past, or that there is a continuing
effect resulting from such a practice. The panel further held
that a prisoner who was found by the district court to
sufficiently allege an imminent danger is entitled to a
presumption that the danger continues at the time of the filing
of the notice of appeal. Applying this standard to plaintiff,
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WILLIAMS V. PARAMO 3
the panel determined that she could proceed in forma
pauperis on appeal.
The panel concluded that the district court erred in
granting summary judgment to the defendants on the issue of
exhaustion of administrative remedies. Viewing the evidence
in the light most favorable to plaintiff and applying the
burden-shifting test established in Albino v. Baca, 747 F.3d
1162, 1158 (9th Cir. 2014) (en banc) and Hilao v. Estate of
Marcos, 103 F.3d 767 (9th Cir. 1996), the panel held that
plaintiff met her burden of production in showing that
administrative remedies were not available to her because she
alleged that she was thwarted from filing a grievance and
appeal. The panel held that defendants had not met their
burden of establishing that plaintiff did not exhaust her
available administrative remedies.
COUNSEL
Jennifer Chou (argued), Certified Law Student, UCLA School
of Law Ninth Circuit Clinic, Los Angeles, California; Strefan
Fauble (argued) and Carlos M. Lazatin, Attorneys,
O’Melveny & Myers LLP, Los Angeles, California, for
Plaintiff-Appellant.
Suzanne Antley (argued), Deputy Attorney General; Kamala
D. Harris, Attorney General of California; Jonathan L. Wolff,
Senior Assistant Attorney General; and Thomas S. Patterson,
Supervising Deputy Attorney General, San Diego, California,
for Defendants-Appellees.
4 WILLIAMS V. PARAMO
OPINION
REINHARDT, Circuit Judge:
Lonnie Williams, a California prisoner representing
herself pro se,1 filed a civil rights action pursuant to 42 U.S.C.
§ 1983 in 2012 against Officers Daniel Paramo, R. Olsen, and
E. Marrero of the Richard J. Donovan Correctional Facility
in San Diego (RJD) and against the County of Los Angeles,
alleging violations of her constitutional rights to due process
of law and to be free from cruel and unusual punishment. In
this appeal, we decide whether the Prison Litigation Reform
Act (PLRA) requires a prisoner who is otherwise barred from
proceeding in forma pauperis under its “three strikes”
provision to show that she faces an imminent danger on
appeal when a showing of such danger has already been made
before the district court. We conclude that it does, but that
there is a presumption of continuing danger and that Williams
has accordingly satisfied the statutory requirement. We also
conclude that the district court erred in dismissing Williams’s
suit for failure to exhaust her administrative remedies.
I.
Congress enacted the PLRA in an effort to curb the large
number of prisoner lawsuits filed in federal court. Jones v.
Bock, 549 U.S. 199, 202 (2007). The PLRA contains a
number of provisions intended to reduce the number of such
1
Williams identifies as a transgender woman, and we refer to her as a
woman even though she is classified as male in the prison records.
WILLIAMS V. PARAMO 5
lawsuits.2 See Woodford v. Ngo, 548 U.S. 81, 84 (2006)
(citing § 1997e(c) (dismissal of meritless claims), § 1997e(d)
(restricting attorney’s fees), and § 1997e(e) (prohibiting
damages for emotional injury without showing of physical
injury)). Among these provisions, and relevant to this appeal,
is a requirement that prisoners exhaust “such administrative
remedies as are available” prior to bringing an action in
federal court. 42 U.S.C. § 1997e(a). In addition to the
screening mechanisms, Congress also amended the
procedures for allowing prisoners to proceed in forma
pauperis. Under 28 U.S.C. § 1915, prisoner litigants are
required to pay court filing fees, although financially
qualified prisoners may pay the fees in increments. Section
1915(g), known as the “three-strikes” provision, prohibits
prisoners from proceeding in forma pauperis if they have
brought three or more actions or appeals that have been
deemed frivolous or malicious or have been held to fail to
state a claim.3 Prisoners who are “under imminent danger of
2
It is not clear, however, that a central premise for enacting the
PLRA—that prisoners were flooding courts with frivolous lawsuits in
increasing numbers— is entirely accurate. Prisoner litigation increased in
the 1980s and the 1990s due to the rapid increase in the incarcerated
population over those years, and state and federal prisoners filed lawsuits
in roughly the same proportions as non-inmates, both before and after the
increase. Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev. 1555,
1692 (2003).
3
Section 1915(g) provides, “In no event shall a prisoner bring a civil
action or appeal a judgment in a civil action or proceeding under this
section if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or appeal in a
court of the United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g).
6 WILLIAMS V. PARAMO
serious physical injury,” however, may proceed in forma
pauperis notwithstanding the fact that they fall within the
three-strikes provision. Id. On this appeal, we consider first
whether Williams must continue to face an imminent danger
at the time she files her notice of appeal in order to proceed
in forma pauperis on appeal, and, if so, whether she does
continue to do so in the case before us.4 Second, we consider
whether the Defendants have met their burden of
demonstrating that Williams has failed to exhaust available
administrative remedies under § 1997e.
II.
In her complaint, Williams alleged the following: that
prison officials Daniel Paramo, R. Olson, and E. Marrero
started rumors that she was a convicted sex offender and
added an “R” suffix to her prison record, denoting that she
had a history of sex offenses;5 that as a result of her
designation as a sex offender, members of the Two-Five
prison gang threatened her and stated that they would “get”
her; that Williams attempted to report her complaints, but
when she did, Officer Daniel Paramo allegedly told her, “So
what! That is not my problem! That is your problem!”; that
despite Paramo’s rejection, Williams tried again; and that she
attempted to file a grievance to the RJD appeals office on the
4
Williams has not challenged the constitutionality of the three strikes
provision here, and we express no view on the question of § 1915(g)’s
constitutionality.
5
Under the California Code of Regulations, inmates receive an “inmate
custody designation,” which determines where an inmate is housed and
the level of security necessary. Cal. Code Regs. tit. 15, § 3377.1. An “R”
suffix is given to inmates “who have a history of specific sex offenses as
outlined in Penal Code . . . Section 290.” Id. § 3377.1(b)(2).
WILLIAMS V. PARAMO 7
afternoon of January 5, 2012, but Correctional Counselor R.
Cobb refused to file her grievance and rejected her appeal.
Williams moved for leave to proceed in forma pauperis,
and the district court granted her motion. Although the
district court found that Williams had filed three previously
dismissed lawsuits and would otherwise be barred from
proceeding in forma pauperis under § 1915(g), it granted her
motion because it concluded that she satisfied the exception
by alleging an “imminent danger of serious physical injury.”6
The Defendants subsequently filed a 12(c) motion for
judgment on the pleadings arguing that Williams had failed
to exhaust her administrative remedies. In support of their
motion, Defendants submitted declarations from J. Ramirez,
the Appeals Coordinator at RJD, and J.D. Lozano, Chief of
the Office of Appeals. Both declarations described the formal
complaint process under Title 15 of the California Code of
Regulations, but the declarations provided no details
regarding how the grievance and appeals procedures were
administered at RJD nor any information regarding how
prisoners were informed of these procedures. The only
portions of the declarations specific to Williams pertained to
the officers’ review of her previously filed grievances and
appeals. Officer Ramirez stated that a search of Williams’s
previous appeals did not turn up an appeal related to her
complaint, and he concluded that she “did not properly
submit any appeals to this office regarding the allegations” in
her complaint. Similarly, Officer Lozano listed several third
6
The district court also concluded that Williams sufficiently stated an
Eighth Amendment failure to protect claim against Defendants Paramo,
Olsen, and Marrero but dismissed the claim against the County of Los
Angeles.
8 WILLIAMS V. PARAMO
level appeals7 that had been received by his office from
Williams but stated that none of them involved the allegations
in her complaint, and he similarly concluded that she had
therefore “not exhaust[ed] any appeal at the Third Level
relating to the issues” in her complaint.
The district court notified Williams of Defendants’
motion to dismiss pursuant to Wyatt v. Terhune, 315 F.3d
1108 (9th Cir. 2003), overruled on other grounds by Albino
v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014), and required
Williams to file her opposition by March 22, 2013. On May
28, 2013, having received no timely opposition from
Williams, the district court granted Defendants’ motion to
dismiss for failure to exhaust, dismissed Williams’s case
without prejudice, and entered a judgment for Defendants.
On June 4, 2013, Williams filed late objections to
Defendants’ motion for judgment on the pleadings and stated
that “prison officials would not file or allow [her] to file a
grievance” and again cited the facts in her complaint. She
further stated that she “‘attempted’ to exhaust her
administrative remedies as to all the allegations alleged in the
complaint and was hampered by prison officials.”
Approximately two weeks later, Williams submitted a
declaration explaining that she had been transferred to the
Department of Mental Health in Vacaville (DMH) and could
not timely file her opposition because she was not given her
legal documents and personal belongings until after the
district court granted Defendants’ motion.
7
A third level appeal is the final step in the administrative appeals
process. Cal. Code Regs. tit. 15, § 3084.2.
WILLIAMS V. PARAMO 9
Construing Williams’s objections as a motion for
reconsideration, the district court denied Williams’s motion.
The district court concluded that Williams did not provide
“any documents, let alone specific factual allegations, that
would defeat the evidentiary support provided by
Defendants.”
Williams subsequently filed a timely notice of appeal.
Prior to her appeal, however, Williams was transferred from
her original facility, RJD, to the California State Prison in
Sacramento (CSP-Sac).8 This court ordered Williams to
show cause why her in forma pauperis status should not be
revoked on appeal. Williams filed a response stating that she
remained in imminent danger at her current facility, CSP-Sac,
because Defendants had told inmates at CSP-Sac that she was
a convicted sex offender and child molester. In her response,
she stated that the inmates at CSP-Sac constantly threatened
to kill her with “inmate manufactured weapons” and to
unlock their handcuffs with “cuff keys” in order to kill her.
Defendants filed a reply asking the court to revoke
Williams’s in forma pauperis status and arguing that
Williams failed to show a “nexus” between her lawsuit and
her newly alleged imminent danger at CSP-Sac. We
subsequently discharged the order to show cause and
appointed Williams pro bono counsel. We have jurisdiction
over Williams’s appeal under 28 U.S.C. § 1331 and 28 U.S.C.
§ 1291.
8
Defendants filed a motion to revoke Williams’s in forma pauperis
status after she was transferred to CSP-Sac on the basis that she was no
longer in imminent danger. Relying on Andrews v. Cervantes, 493 F.3d
1047, 1051 (9th Cir. 2007), the district court denied the motion on the
ground that Williams was required to demonstrate imminent danger only
at the time she filed her complaint.
10 WILLIAMS V. PARAMO
III.
A.
We first address Defendants’ contention that a prisoner
who has three strikes under § 1915(g) and who has
demonstrated in the district court that she falls within the
imminent danger exception in order to proceed in forma
pauperis must still qualify under this exception at the time of
appeal. We expressly declined to address this question in
Andrews v. Cervantes, 493 F.3d 1047 (9th Cir. 2007),
because there had been no change in the danger faced by the
prisoner between the time he filed his complaint and the time
he filed his appeal. Id. at 1053 n.4. We now conclude that
the text of the statute requires that plaintiffs must allege the
continued existence of imminent danger at the time the notice
of appeal is filed.
The parties raise several arguments regarding the history
and structure of the PLRA, but we believe that the plain
meaning of the statute controls here. Because we assume that
Congress means what it says in a statute, the “plain meaning
of a statute controls where that meaning is unambiguous.”
Khatib v. Cnty. of Orange, 639 F.3d 898, 902 (9th Cir. 2011)
(en banc). Section 1915(g) states,
In no event shall a prisoner bring a civil action
or appeal a judgment in a civil action or
proceeding under this section if the prisoner
has, on 3 or more prior occasions, . . . brought
an action or appeal in a court of the United
States that was dismissed on the grounds that
it is frivolous, malicious, or fails to state a
claim upon which relief may be granted,
WILLIAMS V. PARAMO 11
unless the prisoner is under imminent danger
of serious physical injury.
28 U.S.C. § 1915(g) (emphasis added). By its terms,
§ 1915(g) prohibits a prisoner from proceeding in forma
pauperis on appeal if the prisoner has three strikes “unless the
prisoner is under imminent danger of serious physical injury.”
We concluded in Andrews that § 1915(g) required a showing
of imminent danger “at the time the prisoner filed the
complaint” because of the section’s use of the present tense
and its concern with the initial act of “bring[ing] the action.”
493 F.3d at 1053. That analysis applies here as well. The use
of the word “shall” and the present tense “appeal” permits a
Court of Appeals to assess whether the imminent danger
exception applies at the time of the appeal. The final phrase
of § 1915(g) — “is under imminent danger of serious
physical injury” — applies to the entire subsection, not just
to the portion that prohibits a three-strikes prisoner from
bringing a civil action in the district court.
Finally, the use of the disjunctive word “or” between the
verb phrases “bring a civil action” and “appeal a judgment”
denotes two different times at which the prisoner must make
the imminent danger showing. Had the statute stated, “In no
event shall a prisoner bring a civil action and appeal a
judgment in a civil action . . . ” we might conclude that a
single determination at the time the complaint was filed is
sufficient because the conjunctive “and” would require us to
treat both the bringing of the action and the appeal as part of
a single, conjunctive whole. Instead Congress has insisted
that the prisoner take neither of the two actions unless the
specified condition is met. In short, she must be eligible both
at the time the complaint is filed and at the time of the notice
12 WILLIAMS V. PARAMO
of appeal.9 Because “[i]t is not our function to devalue the
English language by disregarding the meaning of words,”
United States v. Saavedra-Velazquez, 578 F.3d 1103, 1110
(9th Cir. 2009) (Reinhardt, J., specially concurring), we
conclude that a prisoner who falls within the three strikes
provision and seeks forma pauperis status may be required to
show that an imminent danger exists at the time the notice of
appeal is filed.
The decisions of other circuits appear to support this
conclusion. No other circuit has devoted substantial analysis
to the question whether a court of appeals may require a
prisoner to show an imminent danger at the time the notice of
appeal is filed, but those that have addressed the question
have concluded that a three-strikes prisoner must do so. In
Baños v. O’Guin, 144 F.3d 883 (5th Cir. 1998), for example,
the Fifth Circuit concluded that an imminent danger finding
must be made at the time the notice of appeal is filed. The
court stated, “In order to implement the statutory scheme, we
must determine if danger exists at the time the plaintiff seeks
to file his complaint or notice of appeal IFP. Likewise, the
language of § 1915(g), by using the present tense, clearly
refers to the time when the action or appeal is filed or the
9
Moreover, the addition of Rule 24(a)(3)(B) to the Federal Rules of
Appellate Procedure supports the conclusion that a three-strikes prisoner
must make a separate showing of imminent danger on appeal. Rule
24(a)(3)(B) provides that, “A party who was permitted to proceed in forma
pauperis in the district-court action . . . may proceed on appeal in forma
pauperis without further authorization, unless: . . . (B) a statute provides
otherwise.” Fed. R. App. P. 24(a)(3)(B). Subparagraph B was apparently
added in order to reconcile Rule 24’s automatic authorization with the
requirements of the PLRA and to require a prisoner to seek permission to
proceed in forma pauperis on appeal. Fed. R. App. P. 24(a)(3) advisory
committee’s note.
WILLIAMS V. PARAMO 13
motion for IFP status is made.” Id. at 885; see also Choyce
v. Dominguez, 160 F.3d 1068, 1070–71 (5th Cir. 1998)
(interpreting Baños as requiring an imminent danger finding
on appeal). The Third and Eighth Circuits have also
concluded, albeit without discussion, that imminent danger
must be shown at the time the notice of appeal is filed, Ball
v. Famiglio, 726 F.3d 448, 467 (3d Cir. 2013); Martin v.
Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003), and the Tenth
Circuit has expressly reserved the question, Hafed v. Fed.
Bureau of Prisons, 635 F.3d 1172, 1180 (10th Cir. 2011).
Thus, we join the Third, Fifth, and Eighth Circuits in
concluding that a three-strikes prisoner may be required to
demonstrate an imminent danger at the time the notice of
appeal is filed in order to proceed in forma pauperis on
appeal.
We do so reluctantly, because if a prisoner is denied
forma pauperis status on appeal on the ground that he no
longer faces an imminent danger, his inability to pay the
filing fee may deprive a court of appeals of the opportunity to
correct any errors committed by the district court. Although
the PLRA was intended to impose the costs of litigation on
prisoners, its purposes do not extend as far as immunizing
erroneous district court decisions. See Abdul-Akbar v.
McKlevie, 239 F.3d 307, 314 (3rd Cir. 2001). Moreover, as
scholars and judges have noted, the three-strikes provision
raises grave constitutional concerns. See, e.g., Thomas v.
Holder, 750 F.3d 899, 904–09 (D.C. Cir. 2014) (Tatel, J.,
specially concurring). Any extension of § 1915(g)’s
provisions should cause us to proceed with caution.
Although these concerns are not sufficient to overcome
the statute’s plain command requiring a showing of imminent
danger at the time of appeal, they provide good reason for us
14 WILLIAMS V. PARAMO
not to depart on appeal from the standard we have developed
for determining imminent danger at the time of the filing of
the complaint. In that context we have held that a prisoner
need only make a “plausible allegation” that he is in
“imminent danger.” Andrews, 493 F.3d at 1055. More
specifically, it is sufficient for the prisoner to allege that he
faces an “ongoing danger,” even if he is not “directly exposed
to the danger at the precise time he filed the complaint.” Id.
at 1056. Thus, “a prisoner who alleges that prison officials
continue with a practice that has injured him or others
similarly situated in the past will satisfy the ‘ongoing danger’
standard.” Id. at 1056–57. We now adopt Andrews as the
standard for determining “imminent danger” on appeal as
well. We do so having in mind “that § 1915(g) concerns only
a threshold procedural question—whether the filing fee must
be paid upfront or later,” id. at 1055—and that “[s]eparate
PLRA provisions are directed at screening out meritless suits
early on.” Id. (citing 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)).
As we explained in Andrews, the limited office of § 1915(g)
in determining whether a prisoner can proceed in forma
pauperis counsels against an overly detailed inquiry into the
allegations that qualify for the exception. Id. This is even
more so when an inquiry must be conducted by a court of
appeals, which, unlike a district court, is ill-equipped to
engage in satellite litigation and adjudicate disputed factual
matters. Von Kennel Gaudin v. Remis, 282 F.3d 1178, 1183
(9th Cir. 2002). It is thus particularly important that the
inquiry ordinarily be conducted through analysis of the
prisoner’s facial allegations and that these allegations be
liberally construed. The inquiry is in essence administrative
and may be conducted as such.
We thus hold, consistent with Andrews, that a prisoner
subject to the three-strikes provision may meet the imminent
WILLIAMS V. PARAMO 15
danger exception and proceed in forma pauperis on appeal if
he alleges an ongoing danger at the time the notice of appeal
is filed. The prisoner may meet this requirement by
“alleg[ing] that prison officials continue with a practice that
has injured him or others similarly situated in the past,”
Andrews, 493 F.3d at 1057, or that there is a continuing effect
resulting from such a practice. We also conclude that a
prisoner who was found by the district court to sufficiently
allege an imminent danger is entitled to a presumption that
the danger continues at the time of the filing of the notice of
appeal. Just as the financial filings required of prisoners
seeking to proceed in forma pauperis in the court of appeals
are not subjected to detailed factual review and are handled
administratively, we see no need to subject a prisoner’s
allegations of imminent danger to “overly detailed” review by
panels of the court. Id. at 1055. In enacting the PLRA,
Congress intended to reduce the flood of litigation brought by
prisoners, see Woodford, 548 U.S. at 84, not by a process that
would have the opposite effect, spawning additional litigation
and creating mini-trials over whether a prisoner has shown an
imminent danger. An affidavit or declaration by the prisoner
that alleges an ongoing danger at the time of the filing of the
notice of appeal will ordinarily suffice to end the inquiry and
allow the prisoner to proceed in forma pauperis.
Applying our test to Williams, we conclude that she
sufficiently alleged an ongoing danger at the time she filed
her notice of appeal. Williams alleges an ongoing
danger—threats to her safety by other inmates—that arises
from the conduct of the original Defendants. In her response
to our order to show cause, she stated that she “is receiving
constant, daily threats of irreparable harm, injury and death
due to the prison officials and defendants revealing to other
inmates (where the appellant is incarcerated) that the
16 WILLIAMS V. PARAMO
appellant is, allegedly, a convicted sex offender and child
molester, which is not true.” Properly construed, Williams’s
allegations are clearly related to her initial complaint
regarding the rumors started by Defendants and their
erroneous assignment of an “R” suffix to her prison file. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). For
these reasons, Williams may proceed in forma pauperis on
this appeal.
B.
The district court granted Defendants’ motion for
judgment on the pleadings because it concluded that Williams
“failed to submit any evidence to rebut Defendants’ showing
that she failed to properly exhaust her administrative
grievances prior to bringing this action.” Because there were
genuine disputes of material fact and because Defendants did
not carry their burden of demonstrating that Williams failed
to exhaust available administrative remedies, summary
judgment was inappropriate and we remand for further
proceedings.
The PLRA requires a prisoner to exhaust “available
administrative remedies” before bringing an action with
respect to prison conditions. 42 U.S.C. § 1997e(a); see also
Booth v. Churner, 532 U.S. 731, 736 (2001). A defendant
may raise failure to exhaust administrative remedies as an
affirmative defense. See Jones v. Bock, 549 U.S. 199, 216
(2007). Until recently, the law in our circuit held that the
proper procedural device to raise a failure to exhaust
administrative remedies was an unenumerated 12(b) motion.
See Wyatt, 315 F.3d at 1119. In Albino v. Baca, however, we
reversed our prior judgment and held that the proper
procedural device for determining whether administrative
WILLIAMS V. PARAMO 17
remedies have been exhausted is a summary judgment
motion. 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc).
Although the district court granted Defendants’ motion for
judgment on the pleadings, a district court’s dismissal of a
complaint may be treated as a summary judgment order if the
court considered extraneous evidence submitted by the parties
in adjudicating the motion. See Del Monte Dunes at
Monterey, Ltd. v. City of Monterey, 920 F.2d 1496, 1507 (9th
Cir. 1990). Because it is clear that the district court
considered evidence submitted by the parties in reaching its
decision, we construe the district court’s order as a grant of
summary judgment on the issue of exhaustion.10 See
Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996).
We review de novo a district court’s grant of summary
judgment for failure to exhaust administrative remedies.
Albino, 747 F.3d at 1168. A grant of summary judgment is
appropriate when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The evidence must be
viewed in the light most favorable to the nonmoving party.
Albino, 747 F.3d at 1168.
Albino also established that the appropriate means of
determining whether a defendant has proved a failure to
exhaust is governed by the same burden-shifting regime used
to evaluate exhaustion under the Torture Victim Protection
Act, as articulated in Hilao v. Estate of Marcos, 103 F.3d 767
(9th Cir. 1996). 747 F.3d at 1172. Under that regime, a
10
Construing the district court’s order as one granting summary
judgment also comports with Albino’s recognition that the procedural
change it effected may have been merely one of “nomenclature.” Albino,
747 F.3d at 1166.
18 WILLIAMS V. PARAMO
defendant must first prove that there was an available
administrative remedy and that the prisoner did not exhaust
that available remedy. Id. (quoting Hilao, 103 F.3d at 778 n.
5). Then, the burden shifts to the plaintiff, who must show
that there is something particular in his case that made the
existing and generally available administrative remedies
effectively unavailable to him by “showing that the local
remedies were ineffective, unobtainable, unduly prolonged,
inadequate, or obviously futile.” Id. (quoting Hilao, 103 F.3d
at 778 n. 5). The ultimate burden of proof, however, remains
with the defendants. Id.
Viewing the evidence in the light most favorable to
Williams and applying the Albino/Hilao burden-shifting test,
the district court erred in granting judgment to the
Defendants. First, Williams met her burden of production in
showing that administrative remedies were not available to
her. “To be available, a remedy must be available ‘as a
practical matter’; it must be ‘capable of use; at hand.’” Id. at
1171 (quoting Brown v. Croak, 312 F.3d 109, 112 (3d Cir.
2002)). Williams alleged in her complaint that she first tried
informing Officer Paramo about the facts alleged in her
complaint, but that he did not help her and told her, “So what!
That is not my problem! That is your problem!”11 She then
attempted to file a grievance and an appeal on January 5,
2012 with Officer Cobb, who rejected the grievance and
refused to file the appeal. Because an administrative remedy
is not available if “prison officials inform the prisoner that he
cannot file a grievance,” Williams’s statements that she was
thwarted from filing a grievance and appeal meet her burden
11
We treat Williams’s complaint as an affidavit because it was made
under penalty of perjury. Keenan v. Hall, 83 F.3d 1083, 1090 n.1 (9th Cir.
1996).
WILLIAMS V. PARAMO 19
of production. Brown v. Valoff, 422 F.3d 926, 937 (9th Cir.
2005) (quoting Croak, 312 F.3d at 113 (internal quotation
marks omitted)).
The evidence produced by the Defendants at most meets
their burden of demonstrating a system of available
administrative remedies at the initial step of the Albino
burden-shifting inquiry, but Defendants have not carried their
ultimate burden of proof in light of Williams’s factual
allegations. The evidence submitted by Defendants generally
outlines the procedure for filing a formal complaint, but it
does not rebut Williams’s evidence that administrative
remedies were not available to her because her filings were
rejected by prison officials. Nor do Defendants provide
evidence that Williams failed to follow prison procedures by
attempting to file her grievance and appeal with Officers
Cobb and Paramo. See Woodford, 548 U.S. at 90–91
(holding that proper exhaustion requires compliance with
agency’s deadlines and procedures).
Defendants argue that remedies were available to
Williams as evidenced by the multiple unrelated appeals that
she was able to file successfully. This argument is a virtual
non-sequitur because it does nothing to rebut Williams’s
evidence that administrative remedies were not available to
her at the time she tried to file the relevant grievance and
appeal in this case. Other circuits have similarly concluded
that defendants may not simply rely on the existence of an
administrative review process to overcome a prisoner’s
showing that administrative remedies were not available to
him. In Hemphill v. New York, for example, the Second
Circuit held that merely showing that grievance mechanisms
are in place does not end the inquiry into availability where
the plaintiff claims that threats by prison officials made the
20 WILLIAMS V. PARAMO
remedy functionally unavailable to him. 380 F.3d 680,
687–88 (2d Cir. 2004); see also Dillon v. Rogers, 596 F.3d
260, 268–69 (5th Cir. 2010) (holding that records showing 53
other inmates had filed grievances during the period in
question did not demonstrate that administrative remedy was
available to plaintiff). Moreover, permitting a defendant to
show that remedies merely existed in a general sense where
a plaintiff has specifically alleged that official action
prevented her from filing a particular grievance would force
a plaintiff to bear the burden of proof, a burden which the
plaintiff does not bear. Albino, 747 F.3d at 1172.
Because Defendants did not meet their burden of
demonstrating that Williams had not exhausted available
administrative remedies, we conclude that summary judgment
was improper and we remand for further proceedings. See
Dillon, 596 F.3d at 267 (remanding the case because the
record was not sufficiently developed when the district court
granted summary judgment); Hemphill, 380 F.3d at 689
(remanding to district court for further proceedings because
the court could not conclude based on the evidence whether
the threats plaintiff received rendered administrative remedies
unavailable).
IV.
We conclude that a court of appeals may require a three-
strike prisoner seeking forma pauperis status to show an
imminent danger at the time the notice of appeal is filed. We
further conclude that the Andrews standard is the appropriate
one to be applied in determining whether a prisoner has
shown an imminent danger on appeal, and that applying that
standard to Williams’s case, she may proceed in forma
pauperis on appeal. Finally, we conclude that the district
WILLIAMS V. PARAMO 21
court erred in granting summary judgment to the Defendants
on the issue of exhaustion, and that Defendants have not met
their burden of establishing that Williams did not exhaust
available administrative remedies. Accordingly, we grant
Williams the right to proceed in forma pauperis on appeal; we
also vacate the order of the district court and remand for
further proceedings on the issue of exhaustion.
GRANTED; VACATED and REMANDED.