Lance Williams v. O. ORTEGA, Correctional Officer;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LANCE WILLIAMS,
Plaintiff-Appellant,
v.
O. ORTEGA, Correctional Officer; et al.,
Defendants-Appellees.
No. 18-55778
D.C. No. 3:18-cv-00547-LAB-
MDD
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted March 12, 2019**
Before: LEAVY, BEA, and N.R. SMITH, Circuit Judges.
California state prisoner Lance Williams appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to pay the
filing fee after denying Williams’ motion to proceed in forma pauperis (“IFP”).
We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
MAR 15 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2 18-55778
court’s interpretation and application of 28 U.S.C. § 1915(g). Andrews v.
Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007). We reverse and remand.
The district court denied Williams’ motion to proceed IFP on the basis that
Williams had filed at least three prior actions in federal court that were dismissed
for being frivolous or malicious, or for failing to state a claim, and that he did not
establish that he was in imminent danger of serious physical injury at the time he
brought the present action. See 28 U.S.C. § 1915(g). However, Williams alleged
that he was physically assaulted by defendant Ortega causing serious injury and
that defendants Ortega and Lewis both threatened Williams with further attacks
and worse injuries if Williams were to report Ortega’s conduct or file any
grievances or lawsuits over the incident. These allegations are sufficient to
plausibly allege imminent danger of serious physical injury. See Williams v.
Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015) (court should liberally construe a
prisoner’s “facial allegations” and determine if the complaint “makes a plausible
allegation” of imminent danger); Andrews, 493 F.3d at 1056-57 (discussing the
imminent danger exception to 28 U.S.C. § 1915(g)).
The district court determined that even if Williams were entitled to proceed
IFP, the action is nevertheless subject to dismissal for Williams’ failure to exhaust
his administrative remedies. The district court correctly points out that Williams’
failure to exhaust is clear from the face of the complaint; however, it is not clear at

-- 2 of 3 --

3 18-55778
this early stage of the proceedings, before defendants have appeared, that
administrative remedies were in fact available to Williams. See Albino v. Baca,
747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (“[O]nly in rare cases will a district
court be able to conclude from the face of the complaint that a prisoner has not
exhausted his administrative remedies and that he is without a valid excuse.”
(citation and internal quotation marks omitted)); see also Williams v. Paramo, 775
F.3d 1182, 1191 (9th Cir. 2015) (failure to exhaust is an affirmative defense on
which defendants bear the ultimate burden of proof); Sapp v. Kimbrell, 623 F.3d
813, 821-22 (9th Cir. 2010) (setting forth review standards and holding exhaustion
is not required where administrative remedies are “effectively unavailable”). On
remand, the parties may litigate whether administrative remedies were available to
Williams.
REVERSED and REMANDED.

-- 3 of 3 --