The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JUSTIN FEJERANG, )
)
Plaintiff, )
)
v. ) No. 23-cv-1283-RJD
)
)
ROB JEFFREYS, ANTHONY D. WILLS, )
LATOYA HUGHES, and VIAPATH )
TECHNOLOGIES, )
)
Defendants. )
ORDER
DALY, Magistrate Judge:
Plaintiff, formerly incarcerated within the Illinois Department of Corrections (“IDOC”) at
Menard Correctional Center (“Menard”), filed this lawsuit pursuant to 42 U.S.C. §1983. Doc. 1.
He alleges that Defendant Jeffreys, the former Director of the IDOC, entered into a contract with
ViaPath Technologies (“ViaPath”) to sell tablets to inmates within the IDOC. Plaintiff purchased
a tablet from ViaPath. ViaPath advertised that the tablets provided unlimited access to music,
books, news, and entertainment. Plaintiff purchased a tablet from ViaPath. Defendants Wills (the
Warden at Menard) and Jeffreys made 30 of the 40 applications on the tablet unavailable.
Following the Court’s threshold review conducted pursuant to 28 U.S.C. §1915A, Plaintiff
proceeded on one claim against Defendant Jeffreys and Wills for violating his First Amendment
rights. Doc. 10. Exercising supplemental jurisdiction, the Court also allowed Plaintiff to proceed
on breach of contract and consumer fraud claims against all Defendants. Id.
Defendants Jeffreys and Wills now move for summary judgment based on Plaintiff’s failure
to exhaust his administrative remedies. Doc. 38. Defendant ViaPath moves to join in the motion.
Doc. 39. Plaintiff did not respond to either motion. Defendants Jeffreys and Wills did not serve
Plaintiff with the notice required by SDIL Local Rule, informing Plaintiff (as a pro se party) of the
consequences for failing to respond to a motion for summary Judgment. Timms v. Frank, 953 F.2d
281, (7th Cir. 1992); Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The Court ordered them to
do; more than 30 days have now passed since Defendants filed and mailed the notice to Plaintiff.
Docs. 41 and 41.
I. Motion for Summary Judgment on the Issue of Administrative Remedy
Exhaustion by Defendants Wills and Jeffries
Pursuant to 42 U.S.C. § 1997e(a), prisoners are required to exhaust available administrative
remedies prior to filing lawsuits in federal court. “[A] prisoner who does not properly take each step
within the administrative process has failed to exhaust state remedies.” Pozo v. McCaughtry, 286
F.3d 1022, 1024 (7th Cir. 2002). “[A] suit filed by a prisoner before administrative remedies have
been exhausted must be dismissed; the district court lacks discretion to resolve the claim on the
merits, even if the prisoner exhausts intra-prison remedies before judgment.” Perez v. Wisconsin
Dep’t of Corr., 182 F.3d 532, 535 (7th Cir. 1999). “[A]ll dismissals under § 1997e(a) should be
without prejudice.” Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004).
An inmate in the custody of the Illinois Department of Corrections must first submit a written
grievance within 60 days after the discovery of the incident, occurrence or problem, to his or her
institutional counselor. 20 ILL. ADMIN. CODE § 504.810(a). If the complaint is not resolved through
a counselor, the grievance is considered by a Grievance Officer who must render a written
recommendation to the Chief Administrative Officer — usually the Warden — within 2 months of
receipt, “when reasonably feasible under the circumstances.” Id. §504.830(e). The CAO then
advises the inmate of a decision on the grievance. Id.
An inmate may appeal the decision of the Chief Administrative Officer in writing within 30
days to the Administrative Review Board (“ARB”) for a final decision. Id. §_504.850(a); see also
Dole v. Chandler, 438 F.3d 804, 806–07 (7th Cir. 2006). The ARB will submit a written report of
its findings and recommendations to the Director who shall review the same and make a final
determination within 6 months of receipt of the appeal. 20 ILL. ADMIN. CODE § 504.850(d) and (e).
Inmates who intend to file suit are required to follow all steps and instructions in the
grievance process before filing with the Court in order to “[allow prisons] to address complaints
about the program [they administer] before being subjected to suit, [reduce] litigation to the extent
complaints are satisfactorily resolved, and [improve] litigation that does occur by leading to the
preparation of a useful record.” Jones v. Bock, 549 U.S. 199, 219 (2007). However, an inmate is
only required to exhaust the administrative remedies that are available to him. Lewis v. Washington,
300 F.3d 829,833 (7th Cir. 2002).
The grievance records submitted by Defendants reflect that Plaintiff submitted a grievance
on April 10, 2023 regarding his inability to access “unlimited” music and books on his tablet. Doc.
38-3, p. 2. Plaintiff filed this lawsuit nine days later. Doc. 1. The grievance officer recommended
that the “grievance be MOOT” on August 7, 2023 and Warden Wills concurred on August 11, 2023.
Doc. 38-3, p. 1. Plaintiff appealed the Warden’s decision to the ARB, but the ARB did not reach a
decision on the merits of the appeal because Plaintiff failed to submit his original grievance with the
appeal. Doc. 38-4, pp. 2-3.
Plaintiff’s grievance records reflect that he did not submit any other grievances regarding the
tablet prior to filing this lawsuit. Docs. 38-1, 38-2, 38-3, 38-4. Accordingly, because the evidence
submitted by Defendants reflect that Plaintiff failed to exhaust his administrative remedies prior to
filing suit, Defendants’ Motion for Summary Judgment (Doc. 38) is GRANTED and Plaintiff’s
claims against Defendants Wills and Jeffries are DISMISSED WITHOUT PREJUDICE.
II. Plaintiff’s claims against Viapath Technologies
ViaPath’s Motion to Join requests that it be allowed to join the Motion for Summary
Judgment filed by Defendants Wills and Jeffries because, ViaPath contends, it does not have access
to Plaintiff’s grievance records (though neglects to explain why it did not subpoena the grievance
records). The exhaustion requirement only applies to suits “brought with respect to prison
conditions” under federal law. 42 U.S.C. §1997e(a). Defendant ViaPath is not alleged to have any
role or influence within the walls of Menard and makes no effort to argue that Plaintiff’s breach of
contract claim and consumer fraud claim against it involve “prison conditions.” Instead, ViaPath
requests a seven-day extension to file its own Motion for Summary Judgment if the undersigned
denies the Motion to Join. The Motion to Join (Doc. 39) is DENIED WITHOUT PREJUDICE.
However, now that Plaintiff’s federal claim against Defendants Wills and Jeffries is no longer
pending in this case, the Court sua sponte considers whether to continue to exercise supplemental
jurisdiction over the remaining state law claims. 28 U.S.C. §1367(c)(3); see also Hay v. Indiana State
Bd. of Tax Com’rs, 312 F.3d 876, 889 (7th Cir. 2002) (“not only may the federal courts police subject matter
jurisdiction sua sponte, they must”). The federal court may (in its discretion) continue to exercise
subject matter jurisdiction over a case where only state law claims remain after the dismissal of
federal claims to avoid duplication of effort. Sharp Electronics Corp. v. Metropolitan Life Ins. Co.,
578 F.3d 505, 515 (7th Cir. 2009). This Court has only considered the exhaustion issue as it applies
to Defendants Wills and Jeffries. The parties did not conduct discovery on the merits of Plaintiff’s
claims. Accordingly, no duplication of effort will be necessary to litigate Plaintiff’s claims against
ViaPath in state court.
The Court may also retain jurisdiction if Plaintiff’s state law claims will be time-barred in
state court. Id. at 514-15. It is unclear which statute of limitations applies to Plaintiff’s breach of
contract claim, and when the statute of limitations time period started for either of Plaintiff’s claims.1
Regardless, an Illinois tolling statute allows Plaintiff a minimum of one year from the date this case
1 There is a three-year statue of limitations for claims filed under the Illinois Consumer Fraud Act. 815 ILCS
is dismissed to re-file in state court. 735 ILCS 5/13-217.
Finally, this Court may retain jurisdiction over Plaintiff’s claims against if it is “absolutely
clear” how those claims should be decided. Sharp Electronics Corp., 578 F.3d at 515. Nothing
before the Court reflects absolute clarity regarding the merits of Plaintiff’s claims. Accordingly,
Plaintiff’s claims against ViaPath are DISMISSED WITHOUT PREJUDICE for lack of subject
matter jurisdiction.
Conclusion
Plaintiff’s claims against Defendants Wills and Jeffries are DISMISSED WITHOUT
PREJUDICE for Plaintiff’s failure to exhaust his administrative remedies. Plaintiff’s claims against
ViaPath are DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. The Clerk
of Court is directed to enter judgment accordingly.
IT IS SO ORDERED.
DATED: February 24, 2025
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge