                            NOT FOR PUBLICATION                          FILED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.




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