REINHARDT, Circuit Judge:
Lonnie Williams, a California prisoner representing herself pro se,
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.
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;
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."
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 appeals
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
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 she had been transferred to the Department of Mental Health in Vacaville (DMH) and could not timely file her opposition because she was not given her legal documents and personal belongings until after the district court granted Defendants' motion.
Construing Williams's objections as a motion for reconsideration, the district court denied Williams's motion. The district court concluded that Williams did not provide "any documents, let alone specific factual allegations, that would defeat the evidentiary support provided by Defendants."
Williams subsequently filed a timely notice of appeal. Prior to her appeal, however, Williams was transferred from her original facility, RJD, to the California State Prison in Sacramento (CSP-Sac).
We first address Defendants' contention that a prisoner who has three strikes under § 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. We expressly declined to address this question in Andrews v. Cervantes, 493 F.3d 1047 (9th Cir.2007), because there had been no change in the danger faced by the prisoner between the time he filed his complaint and the time he filed his appeal. Id. at 1053 n. 4. We now conclude that the text of the statute requires that plaintiffs must allege the continued existence of imminent danger at the time the notice of appeal is filed.
The parties raise several arguments regarding the history and structure
28 U.S.C. § 1915(g) (emphasis added). By its terms, § 1915(g) prohibits a prisoner from proceeding in forma pauperis on appeal if the prisoner has three strikes "unless the prisoner is under imminent danger of serious physical injury." We concluded in Andrews that § 1915(g) required a showing of imminent danger "at the time the prisoner filed the complaint" because of the section's use of the present tense and its concern with the initial act of "bring[ing] the action." 493 F.3d at 1053. That analysis applies here as well. The use of the word "shall" and the present tense "appeal" permits a Court of Appeals to assess whether the imminent danger exception applies at the time of the appeal. The final phrase of § 1915(g) — "is under imminent danger of serious physical injury" — applies to the entire subsection, not just to the portion that prohibits a three-strikes prisoner from bringing a civil action in the district court.
Finally, the use of the disjunctive word "or" between the verb phrases "bring a civil action" and "appeal a judgment" denotes two different times at which the prisoner must make the imminent danger showing. Had the statute stated, "In no event shall a prisoner bring a civil action and appeal a judgment in a civil action..." we might conclude that a single determination at the time the complaint was filed is sufficient because the conjunctive "and" would require us to treat both the bringing of the action and the appeal as part of a single, conjunctive whole. Instead Congress has insisted that the prisoner take neither of the two actions unless the specified condition is met. In short, she must be eligible both at the time the complaint is filed and at the time of the notice of appeal.
The decisions of other circuits appear to support this conclusion. No other circuit has devoted substantial analysis to the question whether a court of appeals may
We do so reluctantly, because if a prisoner is denied forma pauperis status on appeal on the ground that he no longer faces an imminent danger, his inability to pay the filing fee may deprive a court of appeals of the opportunity to correct any errors committed by the district court. Although the PLRA was intended to impose the costs of litigation on prisoners, its purposes do not extend as far as immunizing erroneous district court decisions. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 314 (3rd Cir.2001). Moreover, as scholars and judges have noted, the three-strikes provision raises grave constitutional concerns. See, e.g., Thomas v. Holder, 750 F.3d 899, 904-09 (D.C.Cir.2014) (Tatel, J., specially concurring). Any extension of § 1915(g)'s provisions should cause us to proceed with caution.
Although these concerns are not sufficient to overcome the statute's plain command requiring a showing of imminent danger at the time of appeal, they provide good reason for us not to depart on appeal from the standard we have developed for determining imminent danger at the time of the filing of the complaint. In that context we have held that a prisoner need only make a "plausible allegation" that he is in "imminent danger." Andrews, 493 F.3d at 1055. More specifically, it is sufficient for the prisoner to allege that he faces an "ongoing danger," even if he is not "directly exposed to the danger at the precise time he filed the complaint." Id. at 1056. Thus, "a prisoner who alleges that prison officials continue with a practice that has injured him or others similarly situated in the past will satisfy the `ongoing danger' standard." Id. at 1056-57. We now adopt Andrews as the standard for determining "imminent danger" on appeal as well. We do so having in mind "that § 1915(g) concerns only a threshold procedural question — whether the filing fee must be paid upfront or later," id. at 1055 — and that "[s]eparate PLRA provisions are directed at screening out meritless suits early on." Id. (citing 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)). As we explained in Andrews, the limited office of § 1915(g) in determining whether a prisoner can proceed in forma pauperis counsels against an overly detailed inquiry into the allegations that qualify for the
We thus hold, consistent with Andrews, that a prisoner subject to the three-strikes provision may meet the imminent danger exception and proceed in forma pauperis on appeal if he alleges an ongoing danger at the time the notice of appeal is filed. The prisoner may meet this requirement by "alleg[ing] that prison officials continue with a practice that has injured him or others similarly situated in the past," Andrews, 493 F.3d at 1057, or that there is a continuing effect resulting from such a practice. We also conclude 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. Just as the financial filings required of prisoners seeking to proceed in forma pauperis in the court of appeals are not subjected to detailed factual review and are handled administratively, we see no need to subject a prisoner's allegations of imminent danger to "overly detailed" review by panels of the court. Id. at 1055. In enacting the PLRA, Congress intended to reduce the flood of litigation brought by prisoners, see Woodford, 548 U.S. at 84, 126 S.Ct. 2378, not by a process that would have the opposite effect, spawning additional litigation and creating mini-trials over whether a prisoner has shown an imminent danger. An affidavit or declaration by the prisoner that alleges an ongoing danger at the time of the filing of the notice of appeal will ordinarily suffice to end the inquiry and allow the prisoner to proceed in forma pauperis.
Applying our test to Williams, we conclude that she sufficiently alleged an ongoing danger at the time she filed her notice of appeal. Williams alleges an ongoing danger — threats to her safety by other inmates — that arises from the conduct of the original Defendants. In her response to our order to show cause, she stated that she "is receiving constant, daily threats of irreparable harm, injury and death due to the prison officials and defendants revealing to other inmates (where the appellant is incarcerated) that the appellant is, allegedly, a convicted sex offender and child molester, which is not true." Properly construed, Williams's allegations are clearly related to her initial complaint regarding the rumors started by Defendants and their erroneous assignment of an "R" suffix to her prison file. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). For these reasons, Williams may proceed in forma pauperis on this appeal.
The district court granted Defendants' motion for judgment on the pleadings because it concluded that Williams "failed to submit any evidence to rebut Defendants' showing that she failed to properly exhaust her administrative grievances prior to bringing this action." Because there were genuine disputes of material fact and because Defendants did not carry their burden of demonstrating that Williams failed to exhaust available administrative remedies, summary judgment was inappropriate and we remand for further proceedings.
The PLRA requires a prisoner to exhaust "available administrative remedies"
We review de novo a district court's grant of summary judgment for failure to exhaust administrative remedies. Albino, 747 F.3d at 1168. A grant of summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a). The evidence must be viewed in the light most favorable to the nonmoving party. Albino, 747 F.3d at 1168.
Albino also established that the appropriate means of determining whether a defendant has proved a failure to exhaust is governed by the same burden-shifting regime used to evaluate exhaustion under the Torture Victim Protection Act, as articulated in Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir.1996). 747 F.3d at 1172. Under that regime, a defendant must first prove that there was an available administrative remedy and that the prisoner did not exhaust that available remedy. Id. (quoting Hilao, 103 F.3d at 778 n. 5). Then, the burden shifts to the plaintiff, who must show that there is something particular in his case that made the existing and generally available administrative remedies effectively unavailable to him by "showing that the local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile." Id. (quoting Hilao, 103 F.3d at 778 n. 5). The ultimate burden of proof, however, remains with the defendants. Id.
Viewing the evidence in the light most favorable to Williams and applying the Albino/Hilao burden-shifting test, the district court erred in granting judgment to the Defendants. First, Williams met her burden of production in showing that administrative remedies were not available to her. "To be available, a remedy must be available `as a practical matter'; it must be `capable of use; at hand.'" Id. at 1171 (quoting Brown v. Croak, 312 F.3d 109, 112 (3d Cir.2002)). Williams alleged in her complaint that she first tried informing Officer Paramo about the facts alleged in her complaint, but that he did not help her and told her, "So what! That
The evidence produced by the Defendants at most meets their burden of demonstrating a system of available administrative remedies at the initial step of the Albino burden-shifting inquiry, but Defendants have not carried their ultimate burden of proof in light of Williams's factual allegations. The evidence submitted by Defendants generally outlines the procedure for filing a formal complaint, but it does not rebut Williams's evidence that administrative remedies were not available to her because her filings were rejected by prison officials. Nor do Defendants provide evidence that Williams failed to follow prison procedures by attempting to file her grievance and appeal with Officers Cobb and Paramo. See Woodford, 548 U.S. at 90-91, 126 S.Ct. 2378 (holding that proper exhaustion requires compliance with agency's deadlines and procedures).
Defendants argue that remedies were available to Williams as evidenced by the multiple unrelated appeals that she was able to file successfully. This argument is a virtual non-sequitur because it does nothing to rebut Williams's evidence that administrative remedies were not available to her at the time she tried to file the relevant grievance and appeal in this case. Other circuits have similarly concluded that defendants may not simply rely on the existence of an administrative review process to overcome a prisoner's showing that administrative remedies were not available to him. In Hemphill v. New York, for example, the Second Circuit held that merely showing that grievance mechanisms are in place does not end the inquiry into availability where the plaintiff claims that threats by prison officials made the remedy functionally unavailable to him. 380 F.3d 680, 687-88 (2d Cir.2004); see also Dillon v. Rogers, 596 F.3d 260, 268-69 (5th Cir.2010) (holding that records showing 53 other inmates had filed grievances during the period in question did not demonstrate that administrative remedy was available to plaintiff). Moreover, permitting a defendant to show that remedies merely existed in a general sense where a plaintiff has specifically alleged that official action prevented her from filing a particular grievance would force a plaintiff to bear the burden of proof, a burden which the plaintiff does not bear. Albino, 747 F.3d at 1172.
Because Defendants did not meet their burden of demonstrating that Williams had not exhausted available administrative remedies, we conclude that summary judgment was improper and we remand for further proceedings. See Dillon, 596 F.3d at 267 (remanding the case because the record was not sufficiently developed when the district court granted summary judgment); Hemphill, 380 F.3d at 689 (remanding to district court for further proceedings because the court could not conclude based on the evidence whether the threats plaintiff received rendered administrative remedies unavailable).
We conclude that a court of appeals may require a three-strike prisoner seeking