# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Argued August 7

, 201 8 Decided August 17 , 201 8

Before

MICHAEL S. KANNE

, Circuit Judge

MICHAEL Y . SCUDDER

, Circuit Judge

AMY J. ST. EVE

, Circuit Judge

No. 17

- 3009

MICHAEL L. WINSTON

, Plaintiff

- Appellant

,

v

.

DAVID A. CLARKE , et al., Defendants

- Appellees

. Appeal from the United States District
Court for the Eastern District of Wisconsin.

No. 15

- CV

- 1398

- JPS

J.P. Stadtmueller, Judge

.

O R D E R

Michael Winston, a former Wisconsin prisoner, appeals the dismissal of his civil

rights action for his purported failure to exhaust administrative remedies. H e a rgues that the district court wrongly relied on an adverse

- credibility finding that was based only on his written evidence. We vacate the judgment and remand the case for further proceedings because , on these facts, the district court’s resolution of the credibility dispute without a hearing or live testimony violates this court’s instructions in Pavey

v. Conley , 544 F.3d 739 (7th Cir. 2008)

.
Winston sued David Clarke ( the Sheriff of Milwaukee County) and Milwaukee County Jail officials for allegedly violating his constitutional rights while he was at the jail from 2012 until early 2014. According to Winston’s sworn complaint, he was denied NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 17

- 3009 Page 2

appropriate footwear at all times, received delayed treatment for a hand fracture in 2012, was prescribed medications that caused him to grow breasts, and was twice confined in an unsanitary cell that exposed him to a flesh

- eating bacteria

— for which he received inadequate treatment.

After Winston moved for partial summa ry judgment, the defendants filed their
own summary judgment motion, arguing that Winston had not exhausted his
administrative remedies as required by 42 U.S.C. § 1997e(a). A deputy inspector in the Milwaukee County Sheriff’s Office submitted an affidavit explaining that his search of the jail’s “grievance database” had uncovered no relevant complaints filed by Winston

. Attached to the affidavit were the jail’s grievance policy (revised in late 2014, after Winston’s transfer from the jail) and inmate handbo ok (revised in 2015), which together
indicated that grievances must be reduced to writing and, if denied, raised on administrative appeal.

Winston countered the employee’s affidavit with factual assertions from his sworn complaint and attached documents

. Winston insisted that he did submit grievances about each of his claims, but received no response

. A fter he was transferred from the jail in early 2014, he sent three letters (two to the jail

, one to the Sheriff), asking
for copies and the status of his gr ievances. H is first letter described the contents of five grievances and gave some approximate filing dates

— early 2013 for the inadequate footwear, late 2013 for the first instance of unsanitary conditions, and early 2014 for the
second instance. In his se cond letter, Winston asked if jail personnel had received his grievances and whether he should “refile” them.

Winston’s third letter again detailed his grievances and explained that they were
filed on the Sheriff ’s Department’s “regulated forms.” He said that jail officials told him
his “hand drafted complaint” about the infections “was filed.” He provided, for the first time, a date for his medication grievance, saying he believed he filed it “the day after I

was t aken off the medication” in April 2014. Winston also asked that this third letter be treated as an “informal complaint” about the “refusal” to respond to his previous letters and grievances: “[Y]our facility seem[s] to have a major breakdown when it comes to inmate filed complaints[.] [Y]ou either get them and choose not to respond or your officers simply discard them[.]”

Winston explained that he had no copies of his grievances because the form he
used

— the jail’s 2013 template

— did not include a carbon cop y for the inmate. (At oral argument on appeal, counsel for the defendants confirmed that the pre

- 2014 grievance policy did not include the provision of carbon copies.) About a month after summaryNo. 17

- 3009 Page 3

judgment briefing was completed, Winston separately asked un der Pavey for an evidentiary hearing on exhaustion.

The district court denied the request for a Pavey hearing and dismissed the case
for failure to exhaust . Though it acknowledged that the parties’ “competing declarations” created a dispute of material fact on whether Winston had filed grievances, the court found that Winston’s evidence was not “credible” because he filed no copies of his grievances. The cou rt opined that an evidentiary hearing was

“ unnecessary ” because “Winston could do no more at a hearing than he has already done in his briefing.” The court designated its dismiss al “without prejudice

. ” Winston appeals.

W e start with a jurisdictional wrink le . The district court ’s “without prejudice”
label raises the question whether the decision was final and appealable under 28 U.S.C. § 1291. But we are satisfied that the district court thought it w as finished with Winston’s

case, s ee Hernandez v. Dart , 81 4 F.3d 836, 8 41 (7th Cir. 2016), because the court said the
case was “over” and designated the suit “terminated.” Indeed , the parties told us at oral argument that no administrative remedies remain available to Winston today , as he is no longer incarcerated

. See Ford v. Johnson , 362 F.3d 395 , 4 01 (7th Cir. 2004) . Thus, the
decision is effectively final , and jurisdiction is secure

. W e therefore turn to the exhaustion question posed by the parties

.

Inmates must exhaust available admin istrative remedies before suing to challenge prison conditions

. 42 U.S.C. § 1997e(a); Ross v. Blake , 136 S. Ct. 1850, 1854

– 55 (2016). Failure to exhaust is an affirmative defense for defendants to prove. Obriecht v. Raemisch , 517 F.3d 489, 492 (7th Cir. 20 08). Yet disputes on questions of fact regarding exhaustion must be decided by the district judge, not a jury. Pavey , 544 F.3d at 74 1

– 4 2. Accordingly, this court has instructed district judges, when an issue o f material fact regarding exhaustion is contested and must be decided, to conduct a h earing to resolve the factual dispute. Id

. W hether a Pavey hearing was necessary to resolve the parties’ factual dispute is a question of law that we review de novo. See Wagoner v. Lemmon

, 778 F.3d 586 , 590 (7t h Cir. 2015).

Winston contends that an evidentiary hearing was needed because Pavey contemplates that live testimony i s the pr oper vehicle for resolving credibility disputes
on exhaustion

. We agree. Pavey instructs district court s to conduct a hearing to resolve
any material factual dispute about exhaustion. 544 F.3d at 742. A hearing ordinarily is
needed when, as here, the parties ’ competing written evidence create s a genuine dispute of material fact that must be resolved by making a credibilit y finding. I n RobertsNo. 17

- 3009 Page 4

v. Neal , 745 F.3d 232 (7th Cir. 2014)

, we said that district court s should not r esolve a “swearing contest” on the exhaustion issue without hearing testimony

. Id. at 234. Either party could be lying , and the American judicial system’s preferred tool for sniffing our falsehoods is the testimonial process

. Id. Accordingly, the district court here erred by discrediting Winston based only on the written evidence in this record.

T he district court thought , however, that a hearing was unnece ssary because Winston did not offer the “level of detail” necessary to rebut the defendants’ evidence that he had not filed any grievances. But the defendants’ evidenc e was no more detailed than Winston’s. They offered an affidavit from their employee

, who stated that he was unable to locate any grievances from Winston in the jail’s “database,” and Winston responded that he had “filed grievances and [made] follow

- up inquiries regarding the complaints.” Perhaps greater detail was needed before the court w oul d credit Winston’s account, but Pavey instructs that the solution is further record development

— not summary judgment. Dale v. Lappin , 376 F.3d 652 (7th Cir. 2004), cited by the district court, does not counsel otherwise. T he district court read Dale as est ablishing a minimum of detail that prisoners must provide in order to be credible. But Dale does
not fit th is fact pattern, where the district judge, although properly concluding that
there was a factual dispute created by competing affidavits, nonetheless resolved th at credibility dispute on the papers. Pavey , decided after Dale , makes clear an evidentiary hearing is the proper way to resolve such a dispute

. See Pavey, 544 F.3d at 742

. The defendants offer two additional reasons why a hearing was unnecessary, but neither is persuasive. First, they contend that Winston offered inconsistent factual
narratives when he supplemented his summary judgment response. His supplemental
evidence pur ported to show that prisoners confined to the “special needs unit,” like he

was, cann ot possess writing instruments. T he defendants say this evidence contradicted his earlier representation (in one of his letters) that he had filed handwritten grievances
i n late 2013 and 2014 (when he was in this unit). But the district judge’s credibility finding does not discuss an y inconsistency in Winston’s submissions, and Winston ’s appellate counsel suggests he may have been allowed to use writing materials under
supe rvision or to dictate his grievance to someone else. Further, this potential inconsistency does not bear upon Winston’s allegation that, before entering the unit, he filed a grievance about the policy against tennis shoes.

Second, the defendants assert th at Winston , in response to their summary judgment motion, failed to properly dispute their proposed finding of fact that he did not file grievances. They point out that he neglected to cite record materials supportingNo. 17

- 3009 Page 5

his contrary factual assertions, thus arguably violating Federal Rule of Civil Procedure 56(c)(1)(A). P erhaps the district court could have , in its discretion, deemed this proposed fact undisputed on that basis. See F ED

. R. C IV

. P. 56(e). But it declined to do so, apparently because it was abl e to locate the evidence necessary to decide that there was a factual dispute. T he court did not have to scour the record to find this
evidence

— Winston cited it in filin gs supporting his own summary judgment motion

. Beyond challenging the denial of the P avey hearing, Winston argues that we should “strike” the affirmative defense of exhaustion because the defendants failed to carry their evidentiary burden. But not only is it premature to rule decisively against Winston, it also is too early to rule for him. An issue of material fact remains outstanding, as the district court found, and r esolving evidentiary disputes like this is
what Pavey hearings are for . T he district court may make appropriate findings

, including about what policy applied when Winston was at the jail, whether he filed any grievances in compliance with that policy, and, if so, whether the grievance process was unavailable to him for any reason.

Accordingly, we vacate the judgment and remand this case for a Pavey hearing and further pro ceedings

.