NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LONNIE CLARK WILLIAMS, Jr., No. 15-56160
Plaintiff-Appellant, D.C. No.
3:12-cv-00113-BTM-RBB
v.
DANIEL PARAMO, Warden, et al.,
Defendants-Appellees. MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Barry Ted Moskowitz, Chief District Judge, Presiding
Argued and Submitted May 10, 2017
Pasadena, California
Before: O’SCANNLAIN and OWENS, Circuit Judges and WILKEN,** Senior
District Judge.
Plaintiff appeals the district court’s decision to grant summary judgment for
Defendants in this prisoner civil rights case. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we reverse.
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The Honorable Claudia Wilken, Senior District Judge for the U.S. District Court
for the Northern District of California, sitting by designation.
I. Imminent Danger
Defendants argue that Williams may not maintain her1 in forma pauperis (IFP)
status in this appeal. If a prisoner has previously brought three or more actions or
appeals that were dismissed as frivolous or on similar grounds, the prisoner may not
bring a civil action or appeal a judgment in a civil action IFP “unless the prisoner is
under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). A prisoner
must “allege the continued existence of imminent danger at the time [a] notice of
appeal is filed.” Williams v. Paramo (Williams I), 775 F.3d 1182, 1187 (9th Cir.
2015). Williams has “three strikes” and therefore may only bring this appeal IFP if
she was in imminent danger at the time she filed it.
Williams sufficiently alleged that she was in imminent danger at the time she
filed this appeal. In her August 27, 2015 sworn motion for IFP and pro bono counsel
she alleged that she was the victim of multiple attacks as a direct result of being
labeled a sex offender by prison officials, and that she is under continuing threat of
the same. Similarly, in her April 9, 2015 sworn opposition to Defendants’ motion for
summary judgment she made lengthy allegations of imminent danger akin to those
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.
2
she had made previously and of a type that would be expected to continue. The
ongoing imminent danger that Williams alleged at the time she filed the notice of the
instant appeal is essentially indistinguishable from the danger that she alleged at the
time of her first notice of appeal, which the panel in Williams I found sufficient. Id.
at 1190. It is the law of the case, see Hegler v. Borg, 50 F.3d 1472, 1475 (9th Cir.
1995), that the danger Williams alleged bears a legally sufficient nexus to
Defendants’ conduct, Williams I, 775 F. 3d at 1190.
Accordingly, Williams may maintain her IFP status in this appeal.
II. Exhaustion
On review of this grant of summary judgment, the panel considers the evidence
de novo, see Brunozzi v. Cable Commc’ns, Inc., 851 F.3d 990, 995 (9th Cir. 2017),
and in the light most favorable to Williams as the non-movant, see Fed. R. Civ. P.
56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of
N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987).
The Prison Litigation Reform Act (PLRA) requires a prisoner to exhaust
“administrative remedies as are available” before bringing an action with respect to
prison conditions. 42 U.S.C. § 1997e(a); see Williams I, 775 F.3d at 1190-91. “[A]n
inmate is required to exhaust those, but only those, grievance procedures that are
3
‘capable of use’ to obtain ‘some relief for the action complained of.’” Ross v. Blake,
136 S. Ct. 1850, 1859 (2016). “To be available, a remedy must be available ‘as a
practical matter’; it must be ‘capable of use; at hand.’” Williams I, 775 F.3d at 1191
(quoting Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc)). A prison
official’s improper failure to process a timely filed grievance renders administrative
remedies unavailable, Andres v. Marshall, 854 F.3d 1103, 1105 (9th Cir. 2017) (per
curiam), as does improperly screening out a grievance, Sapp v. Kimbrell, 623 F.3d
813, 823 (9th Cir. 2010).
In Williams I, the panel found that Williams had met her burden of production
to show that administrative remedies were not available to her by alleging under
oath that she informed Warden Paramo of the facts underlying her grievance and he
verbally rebuffed her; and that she then attempted to file a grievance and an appeal
with Officer Cobb, who refused to file the grievance or the appeal.2 775 F.3d at
1191-92. The panel found that the evidence produced by Defendants “at most” met
their burden, at the initial step of the Albino burden-shifting inquiry, to demonstrate
2
Following remand, Williams clarified that she also re-wrote the grievance and
appeal that she submitted to Officer Cobb and mailed the duplicates to Warden
Paramo with a request that he forward them to Officer Cobb and instruct him to
process them. Defendants do not dispute this.
4
the existence of a system of administrative remedies. Id. at 1192. The panel
concluded that summary judgment3 on exhaustion was improper and remanded for
further proceedings. Id.
The only new evidence that Defendants offered after remand in support of their
motion for summary judgment on exhaustion is the declaration of Officer Cobb.
Officer Cobb did not deny that he refused to accept Williams’ grievance and appeal.
He declared that he did not recall receiving a grievance from Williams on January 5,
2012, but that if she submitted a grievance and he returned it, he would have done so
because the grievance did not comply with prison regulations. Much like the
evidence Defendants offered in support of their first dispositive motion, Officer
Cobb’s declaration shows that a system of administrative remedies was in place, and
Defendants again carried their burden under the first step of the Albino inquiry. See
Williams I, 775 F.3d at 1191. But Williams has also carried her burden to show that
“something particular . . . made the existing and generally available administrative
remedies effectively unavailable” to her. Id. The ultimate burden of proof on
3
Defendants’ motion for judgment on the pleadings relied on evidence outside the
pleadings and the district court considered that evidence; accordingly, the panel in
Williams I treated the district court’s dismissal of the complaint as summary
judgment. 775 F.3d at 1191.
5
exhaustion remains with Defendants under the Albino burden-shifting regime, id., in
addition to the burden to negate Williams’ evidence in order to prevail on summary
judgment, see Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th
Cir. 2000). Officer Cobb’s speculative testimony is insufficient to satisfy either
burden.
Accordingly, Defendants have not demonstrated that there is no dispute of
material fact concerning whether Williams exhausted her administrative appeals.
We remand for further proceedings on this issue.
REVERSED AND REMANDED.
6