United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued August 7, 2018

Decided August 17, 2018

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 civilrights action for his purported failure to exhaust administrative remedies. He argues 

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NONPRECEDENTIAL DISPOSITION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. 32.1
No. 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 summary 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 handbook (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. After 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 grievances. His 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 second 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 taken 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 copy 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 summary 
No. 17-3009 Page 3

judgment briefing was completed, Winston separately asked under 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 court 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 dismissal “without prejudice.” Winston 

appeals. 

We start with a jurisdictional wrinkle. 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 was finished with Winston’s 

case, see Hernandez v. Dart, 814 F.3d 836, 841 (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, 401 (7th Cir. 2004). Thus, the 

decision is effectively final, and jurisdiction is secure. We therefore turn to the 

exhaustion question posed by the parties.

Inmates must exhaust available administrative 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. 2008). Yet disputes on questions of fact regarding

exhaustion must be decided by the district judge, not a jury. Pavey, 544 F.3d at 741–42.

Accordingly, this court has instructed district judges, when an issue of material fact

regarding exhaustion is contested and must be decided, to conduct a hearing to resolve 

the factual dispute. Id. Whether 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 (7th Cir. 2015). 

Winston contends that an evidentiary hearing was needed because Pavey

contemplates that live testimony is the proper vehicle for resolving credibility disputes

on exhaustion. We agree. Pavey instructs district courts 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 creates a genuine 

dispute of material fact that must be resolved by making a credibility finding. In Roberts 
No. 17-3009 Page 4

v. Neal, 745 F.3d 232 (7th Cir. 2014), we said that district courts should not resolve 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.

The district court thought, however, that a hearing was unnecessary 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’ evidence 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 would 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. The district court read Dale as establishing a 

minimum of detail that prisoners must provide in order to be credible. But Dale does 

not fit this fact pattern, where the district judge, although properly concluding that 

there was a factual dispute created by competing affidavits, nonetheless resolved that

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 purported to show that prisoners confined to the “special needs unit,” like he 

was, cannot possess writing instruments. The defendants say this evidence contradicted 

his earlier representation (in one of his letters) that he had filed handwritten grievances 

in late 2013 and 2014 (when he was in this unit). But the district judge’s credibility 

finding does not discuss any inconsistency in Winston’s submissions, and Winston’s 

appellate counsel suggests he may have been allowed to use writing materials under 

supervision 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 that 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 supporting 
No. 17-3009 Page 5

his contrary factual assertions, thus arguably violating Federal Rule of Civil Procedure 

56(c)(1)(A). Perhaps the district court could have, in its discretion, deemed this 

proposed fact undisputed on that basis. See FED. R. CIV. P. 56(e). But it declined to do so, 

apparently because it was able to locate the evidence necessary to decide that there was 

a factual dispute. The court did not have to scour the record to find this 

evidence—Winston cited it in filings supporting his own summary judgment motion. 

Beyond challenging the denial of the Pavey 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 resolving evidentiary disputes like this is 

what Pavey hearings are for. The 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 proceedings.