                        NONPRECEDENTIAL DISPOSITION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

                                 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,                              Appeal from the United States District
    Plaintiff-Appellant,                         Court for the Eastern District of Wisconsin.

       v.                                        No. 15-CV-1398-JPS

DAVID A. CLARKE, et al.,                         J.P. Stadtmueller,
     Defendants-Appellees.                       Judge.

                                        ORDER

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