level but my point what i would like to impress upon this court is that this is the type of case that we really need to keep in mind where we are in the litigation that is the not this is pretty trial  and so we have to resist kind of any kind of temptation to make a like a credibility determination this early in the case we've all read many colorful statements from prison me to address actually and then the second issue is whether the district court erred on the merits and granting the defendant's motion for summary judgment so i'd like to begin with the first issue that imminent danger exception now the the key point i'd like to make about that issue today is the standard announced in the by this court in williams why in the prior appeal in this very same case and in that in that opinion the court you know adopted the standard from andrew's first serve on to us which was the standard that you basically have to just make a plausible allegation that you're under imminent danger to your physical safety that's all the inmate has to do at the time in andrews it's out the filing of the initial lawsuit with williams why and they adopted that rule and said you have to make that allegation of the filing of the nose of appeal so but the court in williams one didn't just you know adopt that it said a lot about the standard and most importantly the court said that there has to be a presumption that there's an ongoing danger and of course that's that's new law because under under andrew's there was no prior opportunity to allege an inmate was in danger and also all these good reasons for taking that kind of relaxed approach i mean we don't want to get into satellite litigation and we want to avoid constitutional problems you know claims where an inmate is kept from accessing the federal courts even though they might be in danger what is or what is if any of the difference in the record between the facts at the time that williams one found eminent danger and the facts currently before this court our position is that there no material difference there miss williams filed an opposition with the district court about two months before the filing of the second notice of appeal which stated very similar allegations you know basically that the prison officials from her first prison were spreading rumors about that she was a sexual offender and then not only spreading rumors but putting an r in her file could i actually have you jump to exhaustion real quickly i want to make sure i understand the relief you're seeking at this stage that the district court found on summary judgment that there wasn't a travel issue of fact on i your client had exhausted properly if we were to agree with you that that was really in error what would the procedure be in a district court on this issue with the district court hold a factual hearing would they call witnesses or there be a trial on the issue exhaustion can you explain to me what the relief is you're seeking on the exhaustion issue well i think it would depend on i think the relief would be similar to in williams why and how they reminded the case and the district court in that case issued an order to show cause and gave the defendants another opportunity to follow a summary judgment motion and and move again on the issue of exhaustion so they did have two bites of the apple in this case no i understand that but let's say for example as i understand how the issue is framed right now we have your client saying hey i made a proper grievance i gave it to officer cobb and officer cobb says you know what i don't remember this one but i can generally say what our procedures were at the time that's i think i'm summarizing the record correctly ok so let's say we agree with you that it was wrong for the district court to enter summary judgment for the defendants at this stage because officer has not been cross examined there are factual issues in dispute both sides have a plausible story point out each other so it goes back to this to court what happens next to the district court have a trial to have a hearing our witnesses called what what what what what do manner i think what joe johns is asking is how would the issue of exhaustion be decided not how would the merits be decided right and what i would ask to be more specific is could this court not simply say yes based on this record essentially summary judgment for that petitioner for the plaintiff on exhaustion this court perhaps you would say could find that there was sufficient exhaustion alternatively yes it would it not have to be an evidentiary hearing where officer kaba come and say yeah i still don't remember and ms williams would come and say yeah i gave it to him and the district court would have to make that determination yes i suppose it could go to the jury along with the merits  i think that it would be appropriate and if i recall i gave three options ok sweet option number one the adoption where the court grants summary judgment in our favor on the issue for sure ok obviously that's the best for you but if we don't agree with you that far then i assume would be a form of all called b r c is what you're looking for right i mean at the end of the day there's there's probably not that much more you could flesh out on this issue factually i mean th mr cobb will say what he's going to say in his declaration and that's not sufficient is not sufficient so i think that eventually the issue of exhaustion i mean both sides have to move on do you want to reserve your time for  stablished for applying the imminent danger exception to the three strikes statute could i ask you the same question what's the difference in the record with respect to that issue between what the williams one court ruled on and what before this court at this time the williams one court said what we should do is look at the allegations of imminent danger they're made at the outset of the appeal at the outset of this appeal this court asked ms williams imminent danger are you when she made six fallings to this court and in not one of those filings did she make any allegation that would connect any conduct of the defendants to those vendors in her complaint she alleged two things that the defendants did they put the r suffix on a record which by the way is re evaluated every time an inmate is transferred so she's been transferred three times since then so the if she still has an arse of it's not because of anything that happened at r j donovan prison second she alleged that the defendants failed to protect her when a non defendant officer told other inmates at r j donovan that she was a sex offender no where in the complaint does she allege that the defendants started rumors about her talked about her did anything to get any action that could have had any impact outside the confines of r j donovan now if you compare that to the allegations of danger that she made at the outset of this appeal they're unrelated she alleged rape at california state prison sacramento by prison officials right ways inning separating her from her fiance name calling taking her property continuing effect resulting from the past practice right and this williams has actually rebut it that presumption by her own allegations the court said that the ongoing danger presumption is as a presumption of the ongoing danger of what was alleged in the district court by at the outset of this appeal alleging dangers that are unrelated to those and connect the defendants in no way to those dangers ms williams herself has rebutted that presumption she has failed to meet this court's criteria for applying the imminent danger exception she's shown no conduct at california state prison sacramento that arises out of the conduct of the defendants or that's clearly related to the initial complaint which this court required and it's significant too that if she were successful on the merits of this case eight those dangers she couldn't get an injunction or damages because those individuals aren't parties to the case and the only issue here is this first issue the question is whether she's entitled to have peace status right exactly and that's important because this court made clear in its previous decision that it's not in a position to conduct an overly detailed analysis of that issue mr mcgowan was right it's in the courts so that it's an administrative decision mrs williams wants you to go rifle going through the record for other allegations and other pleadings even pleadings at the district court to find something that would connect her allegations to the defendant but this court shouldn't have to do that what they should do the better practice is what you should do is exactly what the court said it would do in its previous decision which is evaluate the facial allegations that are made at the outset of the appeal would you need to move on to exhaustion but if i could just ask whether the information about an r designation in a file at one prison does or does not go even if it's reevaluated does it not go to the second there so that they would know that a prior prison had put an r there that's my question whether that's in the record yes your honor that would be actually it's not in the record but that information would be in the inmates history and could be but it's evaluated at the time of the transfer and based on information that's provided by the convict in court so this question also affirmed the summary judgment because ms williams failed to exhaust could you answer the question that we were struggling with with your opponent here about what would happen if we were to find the court was wrong in granting summary judgment for the defendant on exhaust and what would we do would we grant summary judgment for the plaintiff would there be an eviden hearing at the court below would it be subsumed with trial issues and tried to a jury in the court below or what i believe that it would probably go back to the district court to hold on i'll be no evidentiary hearing to determine that issue and then proceed from there this williams did not exhaust and our position is that it's clear and undisputed on the record that even if you accept her allegation that officer cobb just wrongfully refused to process her grievance she still had avenues of recourse available to her that she didn't take she could have resubmitted the piece the appeal with a showing that it was wrongfully not process or she could have filed a separate grievance complaining about the failure to process or there's also a provision in the regulations that allows the third level review or to determine that it can take a grievance for review even if it was wrongfully rejected be love those were available to her the deferred level review or isn't the warden no it's not week issue and the legal question before this court is under albie you know did the defendants come forward with evidence to meet their burden of showing that evans were available that she did not take they did and she didn't refuse that evidence what she did instead was in a minute that she didn't take those avenues and because she submitted the mail the grievance actually to the warden and ask him to give it to the appeals coordinator that's not a proper way to exhaust now any concern that requiring an inmate to follow those alternative means of exhaustion is unfounded because those alternative means are there to the inmate the assistance of a way to get that cleared up either way if it was a mistake and fell through the cracks those alternative means give the inmate a way to get that mistake cleared up and move on get the issue a result or how much how many alternative means does the case law require an inmate to follow well first of all nine if the invading comes forward with some evidence to support the cla that the grievance was wrongfully not process here for example ms williams claims that she kept copies of everything she submitted everybody and the district court gave her additional opportunities even beyond what the rules require to submit that evidence to support the claim if she had done that she might have been able to build her case and been excused from exhaustion she didn't ever present that evidence to the court but even even if an invite doesn't have that evidence those alternative means help them build a record you know if it happens again then they've got a record and they can be excused i'm just wondering if there's any authority to tell us that multiple alternative means must be followed and if so how many of them must be etc i'm not aware of any that say how many but what we do have is the united states supreme court's decision saying that to properly exhaust an inmate must follow the procedures that are outlined for exhaustion in the prisons regulations those procedures are there and they're there to help the inmate and those williams didn't avail herself of those and failed to exhaust so this and the danger however there's repeated instances of mr williams sane alleging that she's under attack and these people are talking here because they know she's you know  very very concise finding by williams one of the williams one court that said that miss williams not her she met her burden of production on the issue of showing that in a state of remedies were not available i don't think this court can make a contrary finding without violating the doctrine on that issue because i mean it's the facts are the same there's nothing unless it's clearly erin that clearly wrong i think this court has to stay with that finding and it also makes sense because because this woman did follow the right procedure she filed it was rejected at the first step it's like where do you go from there there's really nowhere to go from there if you're denied access the very beginning of the process thank you very much counsel for your argument in this case is now submitted