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Three Strikes Litigant Required to Show Ongoing “Imminent Danger” to Proceed on Appeal

Three Strikes Litigant Required to Show Ongoing “Imminent Danger” to Proceed on Appeal

by Lonnie Burton

On January 7, 2015, the Ninth Circuit Court of Appeals held that a pro se prisoner litigant who had accumulated three strikes under 28 U.S.C. § 1915(g) for filing frivolous lawsuits must demonstrate that he or she continues to be in “imminent danger” to pursue an appeal.

Lonnie C. Williams, Jr., a transgender prisoner incarcerated at the Richard J. Donovan Correctional Facility in San Diego, California, sued three prison officials, alleging they had started false rumors that she was a sex offender. Williams also claimed the officials – Warden Daniel Paramo, Counselor R. Olson and E. Marrero – added an “R” suffix to her records, which in California designates the prisoner as a sex offender. As a result of their actions, Williams was under constant threat of harm from other prisoners, she said.

When Williams attempted to file a grievance over the matter, Paramo prevented her from doing so, saying “So what? That is not my problem. That is your problem!” A counselor later refused Williams’ request to file a grievance and rejected her appeal.

After she sued, the defendants moved to dismiss her complaint because she had failed to exhaust available administrative remedies. The Ninth Circuit overturned the district court’s order that Williams was procedurally barred for failing to exhaust administrative remedies, because such remedies are not “available” if “prison officials inform the prisoner that [s]he cannot file a grievance.”

The defendants also sought dismissal of Williams’ suit because she had three strikes under the Prison Litigation Reform Act, meaning she had filed at least three previously-dismissed lawsuits deemed frivolous and was barred from bringing further lawsuits unless she was in “imminent danger of serious physical injury.” As the district court had dismissed Williams’ suit on failure to exhaust grounds, it did not determine whether she was in “imminent danger.”

On appeal, the issue became whether a three strikes litigant proceeding in forma pauperis must show that he or she continues to be in imminent danger at the time of appeal. If not, the defendants argued, the appeal must be dismissed on that basis alone.

The Ninth Circuit found the plain language of § 1915(g) requires a prisoner to be in imminent danger of physical harm at the time of appeal, or the appeal must be dismissed. However, the appellate court noted that a prisoner who sufficiently pleaded imminent danger at the district court level was entitled to a presumption that the danger continued at the time of appeal. The prisoner meets this requirement by “alleging that prison officials continue with a practice that has injured him or others similarly situated in the past,” the Court of Appeals wrote.

With respect to Williams’ case, the Ninth Circuit found she had properly alleged an ongoing danger at the time of appeal, as she was “receiving constant, daily threats of irreparable harm, injury and death due to the prison officials and defendants revealing to other inmates that the appellant is, allegedly, a convicted sex offender and child molester, which is not true.”

The Ninth Circuit granted Williams the right to proceed on appeal, vacated the district court’s order of dismissal and remanded for further proceedings on the issue of exhaustion. The case remains pending. See: Williams v. Paramo, 775 F.3d 1182 (9th Cir. 2015).


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Related legal case

Williams v. Paramo