Pavao v. Sims

• Decision Date: 10 February 2017
• Docket Number: No. 15-11790,15-11790
• Parties: JOHN PAVAO, Plaintiff-Appellant, v. SIMS, Officer Sgt, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

JOHN PAVAO, Plaintiff-Appellant, v. SIMS, Officer Sgt, Defendant-Appellee.

No. 15-11790

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

February 10, 2017

[DO NOT PUBLISH]

Non-Argument Calendar

D.C. Docket No. 5:13-cv-00233-WS-GRJ

Appeal from the United States District Court for the Northern District of Florida

Before TJOFLAT, MARCUS, and ROSENBAUM, Circuit Judges.

PER CURIAM:

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 grievancerelating 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 allegationsagainst 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 non-compliance 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 backof the form. 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. 12-6-39805; 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. 1302-102-077) 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 transferredto 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 grievancesubmitted 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.

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).

Although proper exhaustion is generally...