John Pavao v. Sims

Filing

Opinion issued by court as to Appellant John Pavao. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11790
Non-Argument Calendar
________________________
D.C. Docket No. 5:13-cv-00233-WS-GRJ

JOHN PAVAO,
Plaintiff-Appellant,
versus
SIMS,
Officer Sgt,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(February 10, 2017)
Before TJOFLAT, MARCUS, and ROSENBAUM, Circuit Judges.
PER CURIAM:

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John Pavao, a Florida state prisoner proceeding pro se, filed this 42 U.S.C.
§ 1983 civil rights lawsuit against Joseph Sims, formerly a correctional officer at
Apalachee Correctional Institution (“Apalachee”).

Pavao alleged that Sims

deliberately provoked his cellmate to attack him until he blacked out and then
threatened him with retaliation for seeking redress through the prison grievance
system. The district court dismissed Pavao’s lawsuit for failure to exhaust his
administrative remedies as required by the Prison Litigation Reform Act of 1995
(“PLRA”), 42 U.S.C. § 1997e(a). On appeal, Pavao argues that he exhausted all
remedies available to him but that the prison refused to address the merits of his
complaints. After careful review, we affirm.
I.
Pavao claims that on November 30, 2012, Sims falsely accused Pavao of
being a child molester and a confidential informant for the Federal Bureau of
Investigation and provoked his cellmate to attack him for those reasons. Pavao’s
cellmate then repeatedly punched and kicked Pavao until he blacked out. Due to
his injuries, Pavao required stiches and was temporarily placed in protective
custody. While he was in protective custody, Sims verbally harassed him for being
a “snitch.” His cellmate was not disciplined.
Pavao further alleged that he used the prison grievance procedure at
Apalachee to seek redress. According to Pavao’s complaint, he filed a grievance
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relating to the November 30 incident on December 10, 2012, but the prison
returned the grievance without processing for writing outside the boundaries of the
form. Also, Pavao was told to file a grievance with the “Colonel” because he had
alleged staff misconduct. Later on, Pavao sought judicial remedies in Florida state
court because he believed that his safety was in danger at the prison. The court
forwarded his correspondence to the Inspector General of the Florida Department
of Corrections (“FDOC”) but otherwise took no action.
Sims filed a pre-answer motion to dismiss, arguing that Pavao failed to
exhaust the administrative remedies available to Florida prisoners before bringing
his § 1983 claims. Sims recognized that Pavao had taken some steps to exhaust his
§ 1983 claims, but he argued that these efforts were inadequate to demonstrate
exhaustion under the PLRA because he did not fully comply with the grievance
procedure outlined in Florida Administrative Code § 33-103. Exhaustion under
§ 33-103 generally requires three steps: (1) an informal grievance; (2) a formal
grievance; and (3) an administrative appeal. Because Pavao did not comply with
this three-step procedure or other procedural regulations, Sims asserted, the court
should dismiss Pavao’s lawsuit for failure to exhaust.
Sims attached to his motion to dismiss evidentiary materials documenting
Pavao’s relevant grievance history. This evidence reflects that before filing suit
Pavao attempted to file a total of seven grievances relating to his allegations
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against Sims, all of which were returned without processing for non-compliance
with § 33-103. What follows is a summary of these grievances.
On December 10, 2012, Pavao filed a grievance directly with the Secretary
of the FDOC (Administrative Appeal No. 12-3-39805). 1 The grievance recounted
the allegations regarding Sims but did not name him. Further, Pavao asserted that
his telephone and address book had been confiscated and that the disciplinary
board had acted improperly in finding him guilty of an infraction on November
30.2 Pavao requested transfer to a different prison and the return of his telephone
and address book. In a separate letter that appears to have been sent with the
grievance, Pavao wrote that he was sending the grievance directly to the Secretary
because he feared for his life and did not trust “any officer or staff.”
Grievance No. 12-3-39805 was returned without processing for noncompliance with § 33-103 because it addressed more than one issue or complaint,
failed to provide relevant information such as names, and had writing on the back
1

The parenthetical information following each grievance represents how the grievance
was processed and logged by either Apalachee or the FDOC.
2

Pavao’s grievances indicate that he was disciplined for conduct relating to but
preceding Sims’s alleged misconduct. Specifically, Pavao indicates that, on November 30, 2012,
he was in the prison chapel enjoying a “Gospel Express Family Performance.” One of the
performers was a teenager who reminded Pavao of his son. Because he missed his son deeply,
Pavao approached the teenager after the performance to thank him and to tell him of the
resemblance. As he approached the teenager, Pavao blacked out and then woke up on the
ground, crying. When he left the chapel, Pavao was taken into disciplinary confinement and
charged with making unauthorized physical contact with the teenager. Shortly thereafter and
because of these events, Pavao explained, Sims accused him of being a child molester and
provoked his cellmate to attack him. Later on, a disciplinary board found him guilty of the
unauthorized-physical-contact infraction.
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The response also directed Pavao to initiate each issue “at the

appropriate level at the institution” and “to file an informal to the Colonel” if he
feared staff because the Colonel should have the opportunity to address issues of
staff misconduct.
Pavao filed three more grievances in December 2012, presenting nearly
identical allegations in each.

He filed (a) a grievance with the Warden of

Apalachee on December 19 (Formal Grievance No. 1212-102-096), which was
returned without processing because he wrote on the back of the form rather than
attaching separate pages; (b) a grievance with the Secretary of the FDOC on
December 21 (Administrative Appeal No. 12-6-40775), which was returned
without processing for non-compliance for largely the same reasons as No. 12-639805; and (c) another grievance with the Warden on December 27, which was
returned without being logged for having been submitted on a self-created form. It
appears that Pavao had attempted to resubmit Formal Grievance No. 1212-102-096
on the self-created form.
Then, in February and March 2013, Pavao filed three additional grievances
alleging that the prison had failed to respond to his prior grievances. On February
21, 2013, Pavao filed a grievance with the Warden (Formal Grievance No. 1302102-077) alleging that he had not received a response to a “corrective grievance”
he had filed relating to No. 1212-102-096. He also requested that he be transferred
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to another prison because he was afraid that the inmate who had attacked him on
November 30 would attack him again.
Grievance No. 1302-102-077 was returned without processing because it
addressed more than one issue. The response also stated that Pavao was required
to first file an informal grievance in order to complain about a failure to receive a
grievance response, that any issues regarding fear of other inmates needed to be
addressed with the Colonel through an “Inmate Request,” not the grievance
procedure, and that transfer issues required an informal grievance first before
moving to the next level.
Also on February 21, 2013, Pavao filed a grievance with the Secretary of the
FDOC (Administrative Appeal No. 13-6-06645) alleging that he had corrected No.
12-6-39805 by refiling his allegations in three separate grievances on December
28, but that he had received no response. The grievance was returned without
processing because Pavao had not submitted his grievance to the appropriate level
of the institution or provided an acceptable reason for not doing so.
Finally, on March 13, 2013, Pavao filed a grievance (Informal Grievance
No. 2013-03-0309) regarding the lack of response to his “corrective grievance”
relating to No. 1212-102-096. The grievance was denied. The response noted that
Pavao’s “corrective grievance,” understood to mean the December 27 grievance

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submitted on a self-created form, had been returned for non-compliance with the
grievance procedure.
In his response to Sims’s motion to dismiss, Pavao claimed that he had done
all he could to exhaust his remedies. Pavao recounted additional efforts he took
after he filed his complaint, but he did not contradict the factual allegations in
Sims’s motion to dismiss or allege that he filed any grievances or appeals, other
than those described above, before filing his complaint in federal district court.
Pavao also attached affidavits stating that he had been harassed by correctional
officers and inmates since filing the instant complaint and that the cellmate who
assaulted him also raped him at Sims’s instruction.
A magistrate judge issued a report and recommendation (“R&R”),
recommending that Pavao’s complaint be dismissed for failure to exhaust his
administrative remedies.

The magistrate judge determined that there was no

material conflict between the factual allegations of Sims’ motion to dismiss and
Pavao’s response, and that the record demonstrated that Pavao did not complete the
three-step grievance procedure required by § 33-103 with respect to his allegations
against Sims. The district court adopted the R&R over Pavao’s objections and
dismissed his complaint. This appeal followed.
II.

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We review de novo a district court’s interpretation and application of the
PLRA’s exhaustion requirement, as codified in 42 U.S.C. § 1997e(a). Johnson v.
Meadows, 418 F.3d 1152, 1155 (11th Cir. 2005). We review the factual findings
underlying an exhaustion determination for clear error. Bryant v. Rich, 530 F.3d
1368, 1377 (11th Cir. 2008).
III.
The PLRA requires prisoners who wish to challenge some aspect of prison
life to exhaust all available administrative remedies before resorting to the courts.
Porter v. Nussle, 534 U.S. 516, 532 (2002); see 42 U.S.C. § 1997e(a). Exhaustion
is mandatory under the PLRA, and unexhausted claims cannot be brought in court.
Jones v. Bock, 549 U.S. 199, 211 (2007).
To satisfy the exhaustion requirement, a prisoner must complete the
administrative process in accordance with the applicable grievance procedures set
by the prison. Id. at 218; Johnson, 418 F.3d at 1156. In other words, “[t]he PLRA
requires ‘proper exhaustion’ that complies with the ‘critical procedural rules’
governing the grievance process.” Dimanche v. Brown, 783 F.3d 1204, 1210 (11th
Cir. 2015). The prison’s requirements, and not the PLRA, define the boundaries of
proper exhaustion, so “the level of detail necessary in a grievance to comply with
the grievance procedures will vary from system to system and claim to claim.”
Id. at 1211 (quoting Jones, 549 U.S. at 218).
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Although proper exhaustion is generally required, a remedy must be
“available” before a prisoner is required to exhaust it. Turner v. Burnside, 541
F.3d 1077, 1082, 1084 (11th Cir. 2008). Administrative remedies are unavailable
in three main scenarios. First, “an administrative procedure is unavailable when
(despite what regulations or guidance materials may promise) it operates as a
simple dead end—with officers unable or consistently unwilling to provide any
relief to aggrieved inmates.” Ross v. Blake, 136 S. Ct. 1850, 1859 (2016); Turner,
541 F.3d at 1083 (the PLRA “does not require inmates to craft new procedures
when prison officials demonstrate . . . that they will refuse to abide by the
established ones”). Second, “an administrative scheme might be so opaque that it
becomes, practically speaking, incapable of use.” Ross, 136 S. Ct. at 1859; Turner,
541 F.3d at 1084 (“Remedies that rational inmates cannot be expected to use are
not capable of accomplishing their purposes and so are not available.”). And third,
a remedy may be unavailable “when prison administrators thwart inmates from
taking advantage of a grievance process through machination, misrepresentation,
or intimidation.” Ross, 136 S. Ct. at 1860; Turner, 530 F.3d at 1385 (holding that
serious threats of retaliation may make remedies unavailable).
In response to a prisoner lawsuit, defendants may file a motion to dismiss
and raise as a defense the prisoner’s failure to exhaust administrative remedies.
Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th Cir. 2015). We
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have established a two-step process for deciding motions to dismiss for failure to
exhaust under the PLRA. Id. District courts first should compare the factual
allegations in the motion to dismiss and those in the prisoner’s response and, where
there is a conflict, accept the prisoner’s view of the facts as true. “The court
should dismiss if the facts as stated by the prisoner show a failure to exhaust.” Id.
Second, if dismissal is not warranted at the first stage, the court should make
specific findings to resolve disputes of fact, “and should dismiss if, based on those
findings, defendants have shown a failure to exhaust.” Id. (noting that defendants
bear the burden of showing a failure to exhaust).
A.

Florida’s Prison Grievance Procedure
The grievance procedure applicable to Florida prisoners is set out in § 33-

103 of the Florida Administrative Code. Section 33-103 contemplates a three-step
sequential grievance procedure: (1) informal grievance; (2) formal grievance; and
then (3) administrative appeal. Dimanche, 783 F.3d at 1211. Informal grievances
are handled by the staff member responsible for the particular area of the problem
at the institution; formal grievances are handled by the warden of the institution;
and administrative appeals are handled by the Office of the Secretary of the FDOC.
See Fla. Admin. Code. §§ 33-103.005–103.007.

To exhaust these remedies,

prisoners ordinarily must complete these steps in order and within the time limits

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set forth in § 33-103.011, and must either receive a response or wait a certain
period of time before proceeding to the next step. See id. § 33-103.011(4).
The ordinary three-step procedure, however, does not necessarily apply in
all instances. For certain types of grievances, including “grievance[s] of reprisal,”
prisoners may elect to skip the first two steps and file a grievance directly with the
Secretary of the FDOC. 3 Id. § 103.005(1). A “grievances of reprisal” is “[a]
grievance submitted by an inmate alleging that staff have taken or are threatening
to take retaliatory action against the inmate for good faith participation in the
inmate grievance procedure.” Id. § 103.002(9).
As relevant here, § 33-103 outlines additional procedural requirements
applicable to all formal grievances, administrative appeals, and direct grievances.4
Each grievance must address “only one issue or complaint.” Fla. Admin. Code
§§ 33-103.006(2)(f), 33-103.007(2)(f).

Further, the prisoner must state his

grievance in Part A of Form DC1-303 and, if additional space is needed, on no
more than two additional pages of narrative.

Id. §§ 33-103.006(2)(c), 33-

103.007(2)(c). “If the [prisoner] writes his complaint anywhere other than within

3

In addition, grievances alleging sexual abuse are subject to different requirements.
Although Pavao now alleges that he was raped by the cellmate at Sims’s instigation, he concedes
that he never raised the issue of sexual abuse in a grievance before filing suit. See Fla. Admin.
Code § 33-103.006(j).
4

Informal grievances are subject to similar procedural requirements. See Fla. Admin.
Code § 33-103.005(2)(b)(2).
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the boundaries of Part A or on the 2 allowable attachment pages, his grievance
shall be returned for non-compliance.” Id.
B.

Analysis of Pavao’s Efforts to Exhaust
Here, the district court did not err by dismissing Pavao’s complaint for

failure to exhaust his administrative remedies. The facts alleged in Sims’s motion
to dismiss and Pavao’s response are not in material conflict, and they demonstrate
that Pavao did not complete the administrative process in accordance with the
applicable grievance procedures set forth in § 33-103 of the Florida Administrative
Code. See Jones, 549 U.S. at 218; Johnson, 418 F.3d at 1156.
First, it is apparent from Pavao’s allegations and Sims’s evidence that Pavao
did not comply with the sequential three-step grievance procedure with regard to
his allegations against Sims. See Dimanche, 783 F.3d at 1211. Critically, Pavao
did not file an informal grievance about the November 30, 2012, events involving
Sims. 5 While Pavao clearly did submit a number of other grievances and appeals
complaining about Sims, these submissions were not on the form used for informal
grievances, nor were they treated by the prison as informal grievances. In any
case, all of Pavao’s submissions were returned for non-compliance with one or
more procedural rules. Accordingly, even though Pavao repeatedly presented the
5

The only informal grievance Pavao filed alleged a lack of response to his “corrective
grievance” relating to No. 1212-102-096, but there is no indication that Pavao continued through
the grievance process by filing a formal grievance and administrative appeal after the denial of
his informal grievance.
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substance of his allegations to the prison, his efforts were not sufficient to exhaust
because he did not comply with “the ‘critical procedural rules’ governing the
grievance process” by going through the three-step procedure. See id. at 1210.
Second, even if Pavao could have bypassed the three-step procedure and
filed a “grievance of reprisal” directly with the Secretary of the FDOC, there is no
basis in the record to conclude that Pavao exhausted his administrative remedies
under this route. The two grievances Pavao filed directly with the Secretary of the
FDOC complaining about Sims’s misconduct (No. 12-3-39805 & No. 12-6-40775)
were returned without processing for non-compliance with § 33-103. Specifically,
both grievances were returned because, among other reasons, they addressed more
than one issue or complaint, in non-compliance with § 33-103.007(2)(f), and had
writing on the back of the form, in non-compliance with § 33-103.007(2)(c). Thus,
the Secretary of the FDOC never reached the merits of Pavao’s complaints.
Third, Pavao’s efforts to exhaust after filing his complaint are not relevant to
the question of whether he exhausted his administrative remedies as required by
the PLRA. “The time the statute sets for determining whether exhaustion of
administrative remedies has occurred is when the legal action is brought, because it
is then that the exhaustion bar is to be applied.” Goebert v. Lee Cty., 510 F.3d
1312, 1324 (11th Cir. 2007). So, in determining whether Pavao exhausted his
administrative remedies, we do not consider any actions he took after filing suit in
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June 2013. Relatedly, Pavao’s efforts to seek redress from the Florida state courts
or the Inspector General of the FDOC are not relevant to the question of
exhaustion because they are not part of the prison grievance procedure, and
therefore are outside the “boundaries of proper exhaustion.” See Dimanche, 783
F.3d at 1210.
Finally, neither Pavao’s allegations nor the evidentiary materials in the
record indicate that the administrative remedies provided in § 33-103 were
unavailable to him. Liberally construed, Pavao’s filings advance three arguments
about the unavailability of remedies. He first suggests that the prison and the
Secretary of the FDOC simply failed to respond to his grievances, preventing him
from completing the grievance process. He specifically references the prison’s
alleged failure to respond to Formal Grievance No. 1212-102-096. But even
assuming that the prison failed to respond to that grievance, the grievance
procedure provides that he could have “proceed[ed] to the next step of the
grievance process”—administrative appeal—after the expiration of 20 days. See
Fla. Admin. Code § 33-103.011(3), (4). Because he could have proceeded by
filing an administrative appeal, the PLRA still requires him to file an appeal
notwithstanding the prison’s lack of response.

Cf. Turner, 541 F.3d at 1084

(stating that a prison’s failure to respond to a formal grievance did not relieve the
prisoner of his obligation to file an appeal when the grievance procedure provided
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that prisoners could file an appeal if they did not receive a response to a formal
grievance within 30 days).
Pavao next suggests that the prison and the Secretary of the FDOC failed to
follow their own rules when they returned his grievances on procedural grounds
without reaching the merits.

We have carefully reviewed the record and the

applicable regulations, however, and we see no indication that the prison or the
Secretary improperly rejected a grievance that is material to the exhaustion
determination. As mentioned above, Pavao did not properly initiate the three-step
grievance process by filing an informal grievance about the November 30, 2012,
events involving Sims. And Pavao’s potential direct grievances, No. 12-3-39805
& No. 12-6-40775, reasonably were found to be non-compliant because they
contained more than one issue or complaint. Thus, the record does not support a
conclusion that the grievance process “operate[d] as a simple dead end—with
officers unable or consistently unwilling to provide any relief to aggrieved
inmates.” See Ross, 136 S. Ct. at 1859.
Pavao lastly alleges that Sims threatened him with retaliation for seeking
redress through the prison grievance procedure. For a prison official’s threats of
retaliation against a prisoner to make the administrative remedy “unavailable,” the
threat must (1) actually deter the prisoner from lodging a grievance or pursing a
particular part of the process and (2) be one that would deter a reasonable prisoner
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of ordinary fortitude from doing so. Turner, 541 F.3d at 1085. Here, the record is
clear that any retaliation or threats of retaliation did not deter Pavao from
continuing to file grievances. Accordingly, Sims’s alleged threats did not make the
administrative remedy unavailable.
For these reasons, the district court did not err in concluding that Pavao,
despite his extensive efforts to inform the prison, the Secretary of the FDOC, and
others of Sims’s alleged misconduct, did not properly exhaust the administrative
remedies available to him under § 33-103 of the Florida Administrative Code.
Accordingly, we affirm the dismiss of his complaint for failure to exhaust as
required by the PLRA, 42 U.S.C. § 1997e(a).
AFFIRMED.

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