United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted August 17, 2020*

Decided August 18, 2020 

Before 

DIANE S. SYKES, Chief Judge 

FRANK H. EASTERBROOK, Circuit Judge 

DIANE P. WOOD, Circuit Judge

No. 19-1586 

JESSE R. PEREZ, 

Plaintiff-Appellant, 

v. 

RENEE PARKER, et al., 

 Defendants-Appellees. 

 

Appeal from the United States District 

Court for the Northern District of Illinois, 

Eastern Division. 

No. 14-cv-4286 

Robert M. Dow, Jr., 

Judge. 

O R D E R 

 Jesse Perez alleges that jail personnel unlawfully beat him and then denied him 

proper medical care. See 42 U.S.C. § 1983. To resolve a factual dispute on the defense 

that Perez did not exhaust the jail’s administrative remedies before filing this suit, the 

district court held a hearing, found that Perez had not exhausted, and dismissed the 

case. Because the court’s factual finding that Perez did not exhaust his administrative 

remedies is not clearly erroneous, we affirm. 

*

 We have agreed to decide the case without oral argument because the briefs and 

record adequately present the facts and legal arguments, and oral argument would not 

significantly aid the court. FED. R. APP. P. 34(a)(2)(C). 

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 19-1586 Page 2 

 

 The relevant events occurred on July 9, 2012, while Perez was held at the Will 

County Adult Detention Facility. According to Perez, as he fought with two other 

detainees, jail officials arrived, handcuffed him, and punched and kicked him. Perez 

was left with a cut above his eye, a swollen face and chest, and severe pain. A doctor 

examined him, confirmed the swelling and bruising in his face and rib area, and gave 

him ice and ibuprofen for the pain. The doctor also told Perez that his ribs could be 

fractured but did not order an MRI or x-ray. Three months later, Perez transferred to 

the Illinois Department of Corrections. 

 In this suit, Perez alleges that the jail officials provoked the fight and used 

unconstitutional force to quell it; then, he continues, medical staff failed to provide him 

with appropriate treatment for his injuries. The defendants moved for summary 

judgment, arguing that Perez had not exhausted the available administrative remedies 

about these matters before suing, as federal law requires. 42 U.S.C. § 1997e(a). The 

district court held a hearing to resolve whether Perez had done so. See Pavey v. Conley, 

544 F.3d 739, 742 (7th Cir. 2008). With Perez represented by recruited counsel, the 

parties offered competing evidence. 

The defendants submitted evidence about the jail’s grievance process and lack of 

any grievance from Perez regarding the July 9 incident. The process requires detainees 

to submit grievance forms in triplicate. A reviewing officer signs the form, gives the 

detainee the pink copy, and if it contains a genuine grievance, forwards the white and 

yellow copies to a sergeant. The sergeant then reviews the form, enters the grievance in 

a log, and forwards the two copies to the applicable department for a response. Once 

the department reviews and answers the grievance, the white copy is routed to the 

detainee’s file and the yellow copy to the detainee. At the Pavey hearing, a sergeant 

testified about the contents of Perez’s file and the jail’s grievance log. Perez’s file 

contained 287 forms, including over 10 grievances in the three months following the 

incident (before his transfer). No form in his file concerned the July 9 incident or its 

aftermath; the same was true of the jail’s grievance log. 

Perez told a different story. He testified that he had submitted multiple 

grievances (“at most ten”) about the July 9 incident, but that the defendants never 

responded to them, logged them, or gave him his pink copies. This testimony conflicted 

with his deposition testimony in two respects. First, at the deposition, he said that he 

had submitted “well over ten” (up to 30) grievances about the incident. Second, he 
No. 19-1586 Page 3 

 

swore that he did receive pink copies of these grievances, but that they must have been 

lost or destroyed when he was transferred. At the hearing, he also produced one copy 

of an unrelated grievance that he had submitted but that was not in the jail’s log in 

order to suggest that its absence from the log showed that some grievances go missing 

at the jail. 

The district court ruled against Perez. It credited the defendants’ evidence about 

the grievance process and the absence of relevant grievances in Perez’s file or the jail’s 

log. The court also disbelieved Perez’s testimony for several reasons. First, none of the 

forms that Perez swore he submitted about the attack were in his file or on the 

grievance log, yet all other (unrelated) forms that submitted after the incident were. 

Second, between his deposition and hearing testimony, Perez contradicted himself. In 

discussing the number of grievances that he said he had submitted, his testimony 

varied from “well over ten” at his deposition to “at most ten” at the Pavey hearing. 

Likewise, at his deposition Perez swore that he received pink copies of the grievances 

(and they were later lost or destroyed); at the hearing he swore he never received pink 

copies. Based on its credibility determinations, the court found that Perez had not filed 

any grievances, so he had not exhausted administrative remedies. The court then 

dismissed the case without prejudice. 

Perez appeals the dismissal, but before reaching the merits we must assure 

ourselves that we have jurisdiction over the appeal. Ordinarily a dismissal without 

prejudice is not final, and therefore not appealable, under 28 U.S.C. § 1291. Hernandez v. 

Dart, 814 F.3d 836, 840 (7th Cir. 2016). But the dismissal of Perez’s suit is effectively final 

because the incident occurred in 2012, so his claims are now barred by Illinois’s twoyear statute of limitations that applies to § 1983 claims. See Wilson v. Wexford Health 

Sources, Inc., 932 F.3d 513, 517–18 (7th Cir. 2019). This bar renders the dismissal final and 

thus our jurisdiction is secure. See Hernandez, 814 F.3d at 840–41. 

Perez challenges generally the district court’s finding that he did not exhaust, but 

his challenge is unpersuasive. (Perez also raises arguments on the merits of his claims, 

but the district court never reached the merits, so exhaustion is the only issue before us.

See 42 U.S.C. 1997e(a).) A district court’s factual findings are not clearly erroneous when 

it “chooses between two permissible inferences from the evidence.” United States v. Rice, 

673 F.3d 537, 540 (7th Cir. 2012). To rule that the district court clearly erred, the entire 

record must leave us “with the definite and firm conviction that a mistake has been 
No. 19-1586 Page 4 

 

committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (quoting 

United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).) 

No clear error occurred here. One permissible inference from the record, and the 

inference the district court reasonably made, is that Perez filed no grievances about the 

events of July 9. The prison’s sergeant credibly testified that no grievances from Perez 

about the July 9 incident were in his file or in the jail’s grievance log, although other 

grievances that Perez filed around the same time were logged and filed. The district 

court also reasonably rejected the alternate inference that Perez proposed: The 

defendants lost or destroyed his grievances about the July 9 incident. The only nontestimonial evidence that he offered to support his view was that, of his 287 filed 

grievances, the defendants did not log one of them. But the defendants’ failure to log 

one of his grievances out of nearly 300 did not require the district court to believe Perez’s 

testimony that he filed numerous grievances about the July 9 incident, all of which the 

defendants also failed to log. 

Moreover, the district court had ample reason to reject Perez’s assertions about 

his filed grievances as inconsistent and therefore not credible. Determinations of 

witness credibility “can virtually never be clear error.” Anderson, 470 U.S. at 575. Perez 

argues that, although his testimony switched between his deposition and the Pavey 

hearing, it was not necessarily inconsistent. He observes that he never committed to the 

exact number of grievances that he filed—he always estimated—and he was just 

confused about what happened to his pink copies. True, Perez never committed to a 

precise tally of filed grievances, but his estimates were contradictory: The lower limit of 

his estimate at his deposition was above the upper limit of his Pavey estimate. As for the 

pink copies, the record belies Perez’s assertion that he was confused. He attested 

unequivocally at his deposition that he received them and later lost them; at the Pavey 

hearing he swore that he never received them. Finally, Perez cannot explain away the 

inconsistency that his other grievances, filed during this period, are in his file, but not 

one of his submissions about this incident are. Given these inconsistencies, the district 

court’s decision to discredit Perez’s testimony was not “completely without 

foundation.” United States v. Cherry, 920 F.3d 1126, 1138 (7th Cir. 2019) (quoting 

United States v. Freeman, 691 F.3d 893, 900 (7th Cir. 2012).) 

We have reviewed Perez’s remaining arguments, but none has merit. 

AFFIRMED