John Pavao v. Sims, 679 F. App'x 819

Background

Plaintiff John Pavao, a Florida state prisoner, sued correctional officer Joseph Sims under 42 U.S.C. § 1983, alleging Sims provoked a cellmate to assault (and later threatened retaliation) after accusing Pavao of being an informant/child molester.
Pavao alleges he was seriously injured on November 30, 2012, required stitches, placed in protective custody, and later verbally harassed; the attacking cellmate was not disciplined.
Pavao submitted multiple grievances to prison officials and the FDOC Secretary between December 2012 and March 2013; the facility returned each grievance without processing for procedural noncompliance under Fla. Admin. Code § 33-103.
Sims moved to dismiss for failure to exhaust administrative remedies under the PLRA; the magistrate and district court found Pavao had not completed the three-step grievance process and dismissed the complaint.
On appeal, the Eleventh Circuit reviewed de novo the PLRA exhaustion issue and affirmed dismissal, holding Pavao failed to properly exhaust under the applicable Florida grievance rules and that available exceptions did not apply.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Pavao exhausted administrative remedies under the PLRA before filing suit	Pavao contends he took all available steps and prison officials refused to address merits, so he exhausted or remedies were unavailable	Sims argues Pavao failed to follow Fla. Admin. Code § 33-103 (informal → formal → appeal) and procedural defects caused returns, so no exhaustion	Held: No exhaustion. Pavao did not complete the required three-step process and his submissions were returned for procedural noncompliance
Whether Pavao could file directly with FDOC Secretary as grievance of reprisal and thus bypass steps	Pavao implied direct submissions to Secretary sufficed because he feared staff/retaliation	Sims pointed to returns for noncompliance (multiple issues, writing on back), so Secretary never reached merits	Held: Direct submissions were returned for procedural defects; no exhaustion via reprisal route
Whether remedies were "unavailable" because prison ignored, misapplied rules, or threatened retaliation	Pavao argued prison/Secretary failed to respond or improperly returned grievances and Sims threatened retaliation, making remedies unavailable	Sims argued regulations allowed proceeding to next step if no response and record shows returns were for valid procedural reasons; Pavao continued filing despite alleged threats	Held: Remedies were available. Failures to respond did not excuse appeal; no evidence of dead end, opacity, or deterrent threats sufficient to excuse exhaustion
Whether post-filing attempts or state court/Inspector General contacts cure exhaustion defect	Pavao pointed to additional steps taken after filing and to forwarding of correspondence to IG/state court intervention	Sims argued PLRA exhaustion is measured at time suit is filed and such contacts are irrelevant	Held: Post-filing efforts and outside contacts are irrelevant; exhaustion judged as of filing date and federal claim dismissed for non-exhaustion

Key Cases Cited

Porter v. Nussle, 534 U.S. 516 (PLRA requires exhaustion before suit)
Jones v. Bock, 549 U.S. 199 (exhaustion is mandatory and requires proper compliance with prison rules)
Dimanche v. Brown, 783 F.3d 1204 (proper exhaustion requires compliance with the grievance system’s critical procedural rules)
Turner v. Burnside, 541 F.3d 1077 (defining when remedies are unavailable and exhaustion process for motions to dismiss)
Ross v. Blake, 136 S. Ct. 1850 (administrative remedies are unavailable if dead-end, opaque, or thwarted by officials)
Johnson v. Meadows, 418 F.3d 1152 (standard for reviewing PLRA exhaustion issues)
Bryant v. Rich, 530 F.3d 1368 (fact-review standard for exhaustion determinations)
Whatley v. Warden, Ware State Prison, 802 F.3d 1205 (two-step framework for PLRA exhaustion motions to dismiss)
Goebert v. Lee County, 510 F.3d 1312 (exhaustion measured at time suit is brought)