IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

RANDALL W. SYLER, 

Plaintiff,

v.

COUNTY OF WILL, et al.,

Defendants.

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No. 12-cv-01408

Judge Andrea R. Wood

MEMORANDUM OPINION AND ORDER

Plaintiff Randall Syler, a prisoner now in the custody of the Illinois Department of 

Corrections, claims that Defendant Will County and certain of its correctional officers and 

contract medical care providers1 violated his Eighth Amendment right to be free from cruel and 

unusual punishment while he was being held at the Will County Adult Detention Facility 

(“WCADF”). Specifically, Syler claims that Defendants acted with deliberate indifference 

towards his serious medical condition of a ruptured testicle. Defendants deny Syler’s claim and 

assert as an affirmative defense that he failed to exhaust his administrative remedies before filing 

suit. After conducting an evidentiary hearing as provided by Pavey v. Conley, 544 F.3d 739 (7th 

Cir. 2008), the Court concludes that Syler indeed failed to exhaust his administrative remedies 

and thus dismisses this case without prejudice.

 1 Syler has sued Will County; Will County Sheriff Paul Kaupas; correctional officers Sione Martel, 

Timothy Quigley, and Dan Herod; Correct Care Solutions LLC (“Correct Care”); and Correct Care 

employees Jesse Horton and Wendy Hackler.
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BACKGROUND

I. The Injury

On September 9, 2009, Syler was booked at the WCADF, given an Inmate Handbook, 

and assigned a top bunk. Approximately one year later, on August 30, 2010, Syler suffered an 

injury upon falling from his bunk. Over the next day or so, Syler informed various medical staff

and correctional officers that he was experiencing pain and other symptoms—such as swelling, 

nausea, and difficulty standing up and walking—because of the fall. On the afternoon of 

September 1, 2010, a doctor examined Syler and found his left testicle to be grossly enlarged, a 

sign of testicular trauma. Syler was then transferred to Silver Cross Hospital, where he was 

diagnosed with a testicular rupture and underwent emergency surgery. On September 4, 2010, 

Syler returned from the hospital to the WCADF, where he was temporarily housed in the medical 

unit to recover from his surgery. Eventually, on November 30, 2010, Syler was transferred from 

the WCADF into the custody of the Illinois Department of Corrections and housed at Menard 

Correctional Center (“Menard”). 

II. The Lawsuit

Syler filed the present lawsuit on February 28, 2012. (Dkt. No. 1.) On January 8, 2013, 

the district judge initially assigned to Syler’s case dismissed his claims for failure to exhaust 

administrative remedies. (Dkt. No. 43.) On appeal, the Seventh Circuit vacated the district 

court’s dismissal and remanded the case for further proceedings. On remand, the case was 

reassigned to this Court. (Dkt. No. 90.) After reassignment, this Court recruited pro bono counsel 

to represent Syler. The parties then proceeded to conduct extensive discovery and motion 

practice limited to the exhaustion issue. This was followed by a two-day Pavey hearing to 

determine whether Syler properly exhausted his administrative remedies.
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III. The Pavey Hearing

The Pavey hearing began on January 29, 2019 and, due to scheduling issues at the facility 

where Syler is being held, was subsequently continued to and concluded on March 14, 2019. 

Syler was represented by counsel at the hearing. Three witnesses testified: retired WCADF 

Classification Sergeant Mary Bridget Graham, Syler, and Syler’s mother, Deborah Syler 

Spencer.

Defendants called Sergeant Graham as their first witness. She testified that the WCADF 

has a formalized grievance process. (See also WCADF Policy and Procedure, Pl.’s Ex. 3.) 

According to Sergeant Graham, the WCADF provides inmates with a blank worksheet called the 

“Form 22” for submission of written grievances. Form 22 is a triplicate form consisting of an 

original white copy, a pink carbon copy, and a yellow carbon copy. After filling out the form, the 

inmate keeps the pink copy, and the white and yellow copies are submitted to the classification 

office. There, a classification sergeant such as Graham stamps the grievance with the date, 

assigns it a number, and logs it in the record book before forwarding it to the appropriate 

department—in Syler’s case, the medical department. After a staff member in the appropriate 

department reviews the grievance, he or she provides a written response on the Form 22. The 

original white copy is then added to the inmate’s classification file, and the yellow copy 

reflecting the response is returned to the inmate.

According to the WCADF’s records, Syler filed a grievance relating to his testicular 

rupture on September 22, 2010 (“September 22 Grievance”), but in that grievance he complains 

only about a $10 co-pay charge he was required to pay. (Pl.’s Ex. 6.) The September 22 

Grievance contains Syler’s written narrative summarizing his complaint and is stamped 

“RECEIVED OCT 13 2010.” It also shows a note from Sergeant Graham on September 24, 
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2010, stating that the grievance was forwarded to the medical director, and a staff response on 

September 28, 2010, indicating that Syler’s $10 co-pay charge would be reimbursed. The 

WCADF also has a copy of another Form 22 that Syler filed on November 3, 2010 (“November 

3 Grievance”), in which he states that he did not receive a response to the September 22 

Grievance. The November 3 Grievance does not reference any other pending grievances. Like 

the September 22 Grievance, the November 3 Grievance contains Syler’s written narrative 

summarizing his complaint, a handwritten notation “Rcd [Received] 11-9-10,” a note from 

Sergeant Graham on November 8 stating that the grievance was forwarded to the medical 

director, and a staff response on November 11 confirming that the $10 co-pay charge was 

reimbursed. Moreover, the WCADF’s grievance log reflects receipt of both the September 22 

Grievance and the November 3 Grievance. (Pl.’s Ex. 7.)

Syler was the second witness to testify at the Pavey hearing. Syler testified that he did not 

know he had to exhaust his administrative remedies prior to filing suit. Yet he also claims that, 

on September 10, 2010, he submitted a written grievance (“September 10 Grievance”) 

complaining about the conduct of the correctional officers and medical staff with respect to his 

testicular injury. Specifically, on September 4, 2010, after he returned to the WCADF from the 

hospital where he had undergone testicular surgery, Syler was placed in the medical unit. 

According to Syler, he was “immobile” and “bedridden” for the entire next week. Syler also 

claims that while he was recovering in the medical unit, he obtained a blank grievance form from 

either a nurse or another inmate and filled out the September 10 Grievance. In addition, he

obtained two additional blank sheets of lined paper from another inmate, which he used to write 

additional statements expounding on the September 10 Grievance. 
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Syler further testified that during the same time period, as he was recovering from 

surgery, he was taking pain medication in the form of either “Vicodins or Norcos.” Syler claims 

that he prepared the September 10 Grievance in the evening after taking his medication. He

admitted that he was “high or something, off [his] Vicodins” at the time, “because [he] couldn’t 

deal with the pain.” Syler clarified that he did not believe the drugs inhibited his memory but 

analogized himself to a “drunk driver [who] believes they’re sober.” Ultimately, Syler testified 

that it took him six hours over a two-day period to complete the grievance form and additional 

two pages, which he then placed “in the door crack” of his cell in the medical unit. Syler claims 

that he was able to reach the door crack of his cell from his bed without standing up. Despite 

those efforts, according to Syler, he never received a response from any member of the WCADF 

staff.

During his testimony, Syler admitted that he was familiar with the WCADF’s grievance 

procedures on September 10, 2010 and that, when he filed grievances on other occasions, he kept 

the pink copy of the Form 22 as instructed by the Inmate Handbook. Syler also claims that on 

September 10, he submitted the white copy of the grievance and kept both the yellow and pink 

copies. Syler testified that he later gave the yellow and pink copies of the September 10 

Grievance to his mother when he was transferred from the WCADF to Menard. His mother then 

turned over both copies of the September 10 Grievance to his attorney at the time, Kevin Bugos.

By the time of the Pavey hearing, however, neither Syler nor Bugos had possession of the pink 

copy; only the yellow copy was accounted for. Syler attributes the unexplained disappearance of 

the pink copy to Bugos. 

Syler’s yellow copy of the September 10 Grievance does not show any notes from a 

classification sergeant or any staff response. The WCADF’s grievance log does not reflect 
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receipt of the September 10 Grievance. (Pl.’s Ex. 7.) Syler admitted at the Pavey hearing that he 

did not file an appeal with respect to the September 10 Grievance, nor did he file a second Form 

22 to follow up on the alleged lack of response from the WCADF. Syler claims he did not know 

that he could take such steps to follow up on a grievance. To support the existence of the 

September 10 Grievance, Syler offered into evidence a letter he wrote to the Sheriff of Will 

County dated August 8, 2011, in which Syler claims that he submitted a grievance on September 

10, 2010. (Pl.’s Ex. 5.) Sergeant Graham wrote back in response to Syler’s correspondence, 

indicating that the WCADF did not have any record of the September 10 Grievance and that the 

only grievance the WCADF found relating to Syler’s testicular injury was the September 22 

Grievance. (Pl.’s Ex. 6.) Syler did not follow up with Sergeant Graham after that point.

Finally, Syler’s mother, Deborah Syler Spencer, testified that upon Syler’s transfer to 

Menard, she went to the WCADF and picked up all records and documents he accumulated 

during his time there. (See Pl.’s Ex. 10.) Spencer recalled that the September 10 Grievance was 

included in those documents, along with several blank Form 22’s. She claimed that she 

eventually handed over Syler’s WCADF documents and records to Bugos, including the pink 

and yellow copies of the September 10 Grievance. At the hearing, Defendants confronted

Spencer with her prior deposition testimony in this matter, in which she stated that after Syler 

was transferred from the WCADF to Menard, he mailed her a package containing the yellow 

copy of the September 10 Grievance.

DISCUSSION

I. Legal Standard

The Prison Litigation Reform Act (“PLRA”) requires prisoner plaintiffs to exhaust their 

administrative remedies prior to filing suit in federal court. See 42 U.S.C. § 1997e(a). The 
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“benefits of exhaustion . . . include allowing a prison to address complaints about the program it 

administers before being subject to suit, reducing litigation to the extent complaints are 

satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a 

useful record.” Jones v. Bock, 549 U.S. 199, 219 (2007). “[U]nexhausted claims are procedurally 

barred from consideration.” Pyles v. Nwaobasi, 829 F.3d 860, 869 (7th Cir. 2016). Failure to 

exhaust properly under the PLRA is an affirmative defense that Defendants must prove by a 

preponderance of the evidence. See Hernandez v. Dart, 814 F.3d 836, 840 (7th Cir. 2016)

(“Failure to exhaust is an administrative defense, and Defendants have the burden of proof.” 

(internal quotation marks omitted)); Williams v. Baldwin, 239 F. Supp. 3d 1084, 1089 (N.D. Ill. 

2017) (“Courts analyze a prisoner’s exhaustion under the preponderance of the evidence 

standard.” (internal quotation marks omitted)). And whether a claim has been exhausted pursuant 

is a determination for a judge—not a jury—to make. See Pavey, 544 F.3d at 741–42. The very 

function of a Pavey hearing is to allow the court to consider competing testimony and make 

resulting credibility determinations. See Roberts v. Neal, 745 F.3d 232, 234 (7th Cir. 2014) (“A 

swearing contest requires an evidentiary hearing to resolve . . . .”); Hicks v. Irvin, 2011 WL 

2213721, at *7 (N.D. Ill. June 7, 2011) (“At the Pavey hearing, a judge is empowered to resolve 

factual disputes pertaining to exhaustion and to make credibility determinations about the 

witnesses.”).

II. Findings of Fact

At issue in the present case is whether Syler in fact submitted the September 10 

Grievance. According to Defendants, Syler fabricated the September 10 Grievance after he 

discovered that the claims in his lawsuit might be barred for failure to exhaust administrative 

remedies.
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The Court first finds that the WCADF had a formalized grievance procedure while Syler 

was detained at the facility and the grievance procedure was available to Syler during and after 

his injury in September 2010. Specifically, according to the Inmate Handbook, the WCADF’s 

inmate grievance procedures required an inmate to communicate his grievance to the facility by 

submitting a completed Form 22. If the inmate was unable to articulate his complaint in writing 

due to a legitimate physical disability or handicap, he could have requested assistance from the 

on-duty Pod Deputy and obtained a reasonable accommodation. Inmates were required to submit 

grievances within 48 hours of the incidents about which they intended to complain; if an inmate 

missed the deadline, he would have to explain the delay. The WCADF’s grievance procedures

also required inmates to appeal any unsatisfactory decisions to the Deputy Chief. Moreover, the 

Court further finds that Syler had a complete and accurate understanding of the grievance 

procedure—as he utilized it successfully on multiple occasions, including one instance within 

two weeks of the purported September 10 Grievance.

The Court further finds that Syler’s testimony about submitting the September 10 

Grievance is simply not credible. Syler offered two conflicting stories regarding the origin of the 

September 10 Grievance. Initially, he claimed that he submitted the September 10 Grievance by 

following the procedures in the Inmate Handbook, but the WCADF failed to respond. However, 

Syler later admitted that he was bedridden and “high” on prescription pain medication on 

September 10 and that he placed the Form 22 in the door crack of his cell because that was the 

only procedure available to him at the time. At one point, Syler testified that he submitted the 

September 10 Grievance on a triplicate form in accordance with WCADF procedure, and he 

blamed the WCADF for the missing white copy and Bugos for the missing pink copy. Yet Syler 

also later contended that “neither the [Inmate] Handbook nor Form 22 says that a submission, a 
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grievance, will be fatal if the wrong color is submitted,” suggesting that he may have submitted 

the wrong color form. Syler’s claim that he did not know he could follow up after receiving no 

response to the September 10 Grievance also undermines his credibility. Syler’s testimony is 

directly controverted by the November 3 Grievance, which reflects exactly that—i.e., his

knowledge that he could in fact take affirmative steps to check in on the status of a previouslyfiled grievance. And the November 3 Grievance does not accuse the WCADF of failing to 

respond to the September 10 Grievance, even though it was purportedly submitted before the 

September 22 Grievance about which Syler complained in the November 3 Grievance.

Furthermore, Syler testified that he understands inmates are supposed to keep the pink 

copy and indeed he had pink copies of other grievances. Yet Syler was unable to explain how or 

why he only had a yellow copy of the September 10 Grievance and no pink copy. On this issue, 

Syler relies heavily on his mother’s testimony, claiming that she picked up the yellow and pink 

copies of the September 10 Grievance from the WCADF after Syler was transferred to Menard. 

But Spencer’s testimony at the hearing was not credible either. While Spencer confirmed Syler’s 

version of events, her testimony was impeached: during her deposition, Syler stated that she 

received the copies of the September 10 Grievance from Syler in the mail after he had already 

been transferred to Menard. Similarly, Spencer testified at the Pavey hearing that Syler did not 

discuss his litigation efforts with her, nor did he ask for her assistance. However, Spencer later 

admitted that Syler called her to say that he planned to mail certain documents to her and 

instructed her to send the documents to Bugos. Spencer gave conflicting testimony about this 

phone conversation as well, stating initially that Syler called her from the WCADF but later that 

he called her from Menard after his transfer. Moreover, although Spencer claimed to recognize 

the September 10 Grievance, she at first could not recall the color of the page, saying that “[t]t 
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could be yellow, it could be white, it could be pink, it could be purple.” Later during the hearing, 

Spencer inexplicably changed her testimony and recalled that the page was pink. Considering the

multiple inconsistencies in Spencer’s statements and her bias as Syler’s mother, the Court does 

not credit her testimony. And Syler did not present any testimony from Bugos confirming that he 

in fact received both a yellow and pink copy from Spencer or that he misplaced the pink copy.

Finally, Syler’s yellow copy also looked markedly different than how a yellow copy 

should. Syler’s impressive collection of no less than sixteen other Form 22 submissions all 

display a stamp or handwritten notation that the grievance was received and the date of receipt, 

as well as a handwritten staff response addressing the substance of the grievance. All the 

grievances relating to medical issues also display a note written by the classification sergeant 

indicating that the grievance was forwarded to the medical director. By contrast, the September 

10 Grievance had no stamp confirming receipt, no note from the classification sergeant, and no 

responsive comments from the medical director or any other department staff member.

In sum, Syler’s version of events is that while he was under the influence of heavy pain 

medication, he submitted the white copy of the September 10 Grievance and two accompanying 

handwritten pages to WCADF, keeping the yellow and pink copies for his own records. The 

WCADF never responded to the September 10 Grievance, and Syler never followed up because 

he did not know he could do so. Upon Syler’s transfer to Menard, Spencer picked up the two 

copies of the September 10 Grievance from the WCADF and later provided them to Bugos.

After considering the evidence, this Court concludes that Syler’s story is simply not 

credible, especially when considered in conjunction with the documents and other evidence 

provided by Defendants. More likely, Syler did not file a timely grievance about Defendants’ 

conduct in connection with his testicular injury in September 2010. Eventually, months or 
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perhaps even over a year later, Syler realized his error and created the back-dated September 10 

Grievance, which he never actually submitted. Syler then disposed of the white copy and either 

lost or disposed of the pink copy, leaving him with only the yellow copy in his possession. This 

explanation accounts for the lack of any other individual’s handwriting on the September 10 

Grievance, as well as the complete absence of any corroboration regarding the submission of 

September 10 Grievance. While Syler points to his own August 8, 2011 letter to the Will County 

Sheriff to support his story, the Court is unpersuaded. After all, Syler easily could have 

fabricated the August 8, 2011 letter as false proof of the nonexistent September 10 Grievance.

Ultimately, the gaps and inconsistencies in Syler’s and Spencer’s testimony, on the one 

hand, and the documentation and testimony presented by Defendants, on the other hand, lead this 

Court to conclude that Defendants have met their burden of showing that Syler did not exhaust 

his administrative remedies.

CONCLUSION

For the foregoing reasons, the Court finds that Syler failed to exhaust his administrative 

remedies and dismisses this case without prejudice. See Fluker v. Cty. of Kankakee, 741 F.3d 

787, 791–92 (7th Cir. 2013) (“We have held that dismissals under § 1997e(a) for failure to 

exhaust must be without prejudice. This is true even if exhausting administrative remedies will 

prove to be impossible . . . .”).

ENTERED:

Dated: June 19, 2019 __________________________

Andrea R. Wood

United States District Judge