                         NONPRECEDENTIAL DISPOSITION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 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,                                     Appeal from the United States District
      Plaintiff-Appellant,                          Court for the Northern District of Illinois,
                                                    Eastern Division.

       v.                                           No. 14-cv-4286

RENEE PARKER, et al.,                               Robert M. Dow, Jr.,
    Defendants-Appellees.                           Judge.

                                        ORDER

        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).
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 two-
year 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 non-
testimonial 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
