                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1




                United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604

                              Submitted November 2, 2018*
                               Decided November 6, 2018

                                         Before

                            DIANE P. WOOD, Chief Judge

                            FRANK H. EASTERBROOK, Circuit Judge

                            AMY J. ST. EVE, Circuit Judge

No. 17-2501

DARRIAN DANIELS,                                Appeal from the United States District
    Plaintiff-Appellant,                        Court for the Central District of Illinois.

      v.                                        No. 16-1245

SUSAN PRENTICE,                                 James E. Shadid,
    Defendant-Appellee.                         Chief Judge.

                                       ORDER

       Darrian Daniels alleged that Susan Prentice, a lieutenant at Pontiac Correctional
Center, sexually assaulted him in retaliation for grievances Daniels had filed against
her. After an evidentiary hearing, see Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008),
the district court entered summary judgment for Prentice because Daniels failed to
exhaust his administrative remedies. 42 U.S.C. § 1997e(a). Daniels appeals. Because he
argues that the district court’s factual findings and conclusions are not supported by the

      * We have agreed to decide this 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).
No. 17-2501                                                                          Page 2

evidence, he was required to submit a transcript of the Pavey hearing. FED. R. APP. P.
10(b)(2). He did not, however, and so we are unable to meaningfully review his
arguments. We therefore dismiss the appeal.
         Daniels’s allegations were lurid. He said that on August 4, 2014, Prentice came to
his cell and forced him to perform oral sex on her while the other inmates were out in
the yard. According to Daniels, Prentice mentioned past grievances Daniels had filed
about her and threatened to file a false sexual assault claim against him if he did not
perform oral sex on her. Daniels also alleged that she threatened further sexual assaults
if he filed a future grievance about her and to have him killed if he told anyone about
the encounter.
        Daniels brought this suit under 42 U.S.C. § 1983 and attached to his complaint
copies of three grievances he had filed. The first two—dated July 8 and July 21, 2014
(before the alleged sexual assault)—charged Prentice with denying Daniels his yard
time and refusing to give him water. These grievances allegedly prompted the
retaliatory assault. The third grievance—dated December 4, 2014 (after the alleged
assault)—complained that Pontiac failed to respond to several grievances Daniels
claimed to have filed, including “one sexual harassment grievance.”
       Prentice moved for summary judgment, arguing that Daniels did not exhaust his
administrative remedies because he failed to file a grievance about the alleged sexual
assault. The court held a Pavey hearing to resolve the disputed question. After the
hearing, the court ordered Prentice to supplement her motion for summary judgment
with answers to more than 20 questions the court posed about the grievance process at
Pontiac, and it ordered Daniels to respond to the original and supplemented summary-
judgment motions.
       After the parties supplemented the record, the district court granted Prentice’s
motion for summary judgment. It found that Daniels did not file a timely grievance
about the alleged sexual assault. The court acknowledged that, to meet her evidentiary
burden, Prentice needed to show more than the absence of a grievance in prison
records. See Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011) (“The exhaustion
requirement is an affirmative defense, which the defendants bear the burden of
proving.” (citing Jones v. Bock, 549 U.S. 199, 216 (2007))). But the court credited the other
evidence Prentice submitted, including records of Daniels’s grievance activity, Daniels’s
counseling record, and affidavits explaining the prison’s grievance procedure and its
Prison Rape Elimination Act plan. The court noted that Daniels’s counseling record
mentions nothing about a sexual assault and that an investigation under the Prison
No. 17-2501                                                                          Page 3

Rape Elimination Act would have been triggered immediately if Daniels had filed a
grievance about sexual assault; none was.
        The court also discredited Daniels’s testimony—his primary evidence that he did
file the grievance. The court first observed that Daniels had not submitted a copy of the
purported grievance despite supplying copies of others he filed both before and after
the alleged assault. The court concluded that Daniels’s copying of grievances, as well as
letters to his counselor, both before and after August 2014, contradicted his claim that
prison rules prevented him from copying the sexual-assault grievance. Further, instead
of filing this lawsuit when it became clear he would get no response (and therefore did
not have an “available” exhaustion process), Daniels waited until shortly before the
statute of limitations expired to file his complaint, despite filing multiple other lawsuits
for alleged offenses that happened later. And, in concluding that Daniels lacked
credibility, the court also relied on the “inconsistency and unreasonableness” of
Daniels’s explanations and its observation of his demeanor at the Pavey hearing.
        On appeal, Daniels argues generally that he submitted sufficient evidence to
prove that he filed a grievance in August 2014 about the retaliatory sexual assault. He
cites his December 2014 grievance and letters he sent to his counselor in August and
September 2014, in which he complained about not receiving responses to grievances,
including one about unspecified “sexual harassment.”
       After a Pavey hearing, we review a district court’s findings of fact and
determinations of credibility for clear error while considering conclusions of law de
novo. Wilborn v. Ealey, 881 F.3d 998, 1004 (7th Cir. 2018). In this case, however, we cannot
assess Daniels’s argument because we lack a transcript of the Pavey hearing. The
testimony and exhibits from that hearing are the primary basis for the district court’s
factual findings and conclusion of law. The court singled out Daniels’s contradictory or
inconsistent statements at the Pavey hearing in finding him not credible. Daniels’s
failure to include the hearing transcript in the record violates FED. R. APP. P. 10(b)(2),
which mandates a transcript if, as Daniels does, the appellant “urge[s] on appeal that a
finding or conclusion is unsupported by the evidence or is contrary to the evidence.”
Without the transcript, we cannot meaningfully review the district court’s decision. See
Morisch v. United States, 653 F.3d 522, 529 (7th Cir. 2011). The judgment of the district
court is therefore AFFIRMED.
