NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LONNIE CLARK WILLIAMS, Jr.,

 Plaintiff-Appellant,

 v.

DANIEL PARAMO, Warden, et al.,

 Defendants-Appellees.

No. 15-56160

D.C. No.

3:12-cv-00113-BTM-RBB

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.

FILED

MAY 30 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 2 

I. Imminent Danger

 Defendants argue that Williams may not maintain her1in 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.
 3 

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 
 4 

‘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.
 5 

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.
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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.