775 F.3d 1182 (9th Cir. 2015), 13-56004, Williams v. Paramo

Docket Nº:13-56004
Citation:775 F.3d 1182
Opinion Judge:REINHARDT, Circuit Judge:
Party Name:LONNIE CLARK WILLIAMS, JR., Plaintiff-Appellant, v. DANIEL PARAMO, Warden; R. OLSON, Correctional Counselor II; E. MARRERO, Defendants-Appellees
Attorney: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; Kam...
Judge Panel:Before: Harry Pregerson, Stephen Reinhardt, and Jacqueline H. Nguyen, Circuit Judges. Opinion by Judge Reinhardt.
Case Date:January 07, 2015
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1182

775 F.3d 1182 (9th Cir. 2015)

LONNIE CLARK WILLIAMS, JR., Plaintiff-Appellant,

v.

DANIEL PARAMO, Warden; R. OLSON, Correctional Counselor II; E. MARRERO, Defendants-Appellees

No. 13-56004

United States Court of Appeals, Ninth Circuit

January 7, 2015

Argued and Submitted, Pasadena, California May 15, 2014.

Page 1183

Appeal from the United States District Court for the Southern District of California. D.C. No. 3:12-cv-00113-BTM-RBB. Barry T. Moskowitz, District Judge, Presiding.

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, 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, 1168 (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.

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.

Before: Harry Pregerson, Stephen Reinhardt, and Jacqueline H. Nguyen, Circuit Judges. Opinion by Judge Reinhardt.

OPINION

Page 1184

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

Page 1185

(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, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). The PLRA contains a number of provisions intended to reduce the number of such lawsuits.2 See Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (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 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.

Page 1186

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 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 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

Page 1187

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...

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