Barnes v. Veath et al

Filing 4

ORDER DISMISSING CASE: IT IS HEREBY ORDERED that COUNTS 1-3 are DISMISSED with prejudice; consequently, this entire action is DISMISSED with prejudice. Because the complaint fails to state a single claim upon which relief can be granted, a strike will be assessed against Plaintiff Barnes for purposes of 28 U.S.C. § 1915(g). Signed by Judge Nancy J. Rosenstengel on 12/11/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LEON BARNES,
No. R-40961,
Plaintiff,
vs.
TIMOTHY R. VEATH,
TONY D. KENNER,
LANCE W. PHELPS,
JENNIFER HECHT, and
OFFICER NELSON,
Defendants.

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Case No. 14-cv-01277-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Leon Barnes, an inmate in Pontiac Correctional Center, brings this action for
deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, based on disciplinary
convictions meted out while he was housed at Menard Correctional Center, which is located in
this judicial district.
This case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A, which provides:
(a) Screening.– The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in which
a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for Dismissal.– On review, the court shall identify cognizable claims
or dismiss the complaint, or any portion of the complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief may be
granted; or
(2) seeks monetary relief from a defendant who is immune from such
relief.

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An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers
to a claim that “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d
1025, 1026-27 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted
if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must
cross “the line between possibility and plausibility.” Id. at 557. At this juncture, the factual
allegations of the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
The Complaint
According to the complaint, on January 15, 2013, an incident occurred on the recreation
yard involving multiple inmates. As a result, Plaintiff was immediately given a disciplinary
ticket for assaulting an inmate.

The next day, Internal Affairs officers Nelson and Hecht

investigated and informed Plaintiff that he should not worry about the disciplinary ticket he had
already received because he would be receiving a ticket from Internal Affairs. According to
Nelson, the Internal Affairs ticket would “trump” the initial ticket.
Before receiving a ticket from Internal Affairs, Plaintiff was given a disciplinary hearing
and convicted of the assault charge. As punishment, he was given six months in segregation, as
well as demotion to C grade and commissary and yard restrictions (see Doc. 1, p. 16). Plaintiff
did not lose any good-time credit.

Timothy R. Veath was a member of the Adjustment

Committee that convicted Plaintiff. One day later, Plaintiff finally received a second disciplinary
ticket from Internal Affairs, charging him with assaulting an inmate and “gang or unauthorized
organization activity” (see Doc. 1, p. 17). Officer Lance W. Phelps issued the second ticket,

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apparently taking over the case from Nelson and Hecht. The two disciplinary tickets and all
charges stem from the incident on January 15, 2013 (compare Doc. 1, p. 16 and pp. 17-19).
The Adjustment Committee—again including Timothy R. Veath, along with Tonya
Kenner—conducted a hearing. Plaintiff objected that he had just been convicted of the assault
charge. Veath acknowledged remembering Plaintiff and the incident at issue. Veath also stated
that if Internal Affairs had told Plaintiff he did not have to worry about the first ticket, then he
did not have to worry. Kenner agreed. Nevertheless, the Committee went on to convict Plaintiff
of the assault and the gang activity charge. Plaintiff was again punished with six months in
segregation, as well as other restrictions, but no loss of good-time credit (see Doc. 1, pp. 17-19).
Believing that he did not have to worry about the duplicative charge and punishment,
Plaintiff did not pursue an appeal or file an administrative grievance. As he neared completion
of what he believed was a cumulative six-month term in segregation, by chance, Plaintiff learned
that he was expected to spend a total of twelve months in segregation. Plaintiff’s subsequent
grievance was denied out of hand because it was deemed untimely—submitted more than sixty
days after the incident at issue (see Doc. 1, pp. 21-23). Plaintiff asserts that his grievance was
not untimely because he had yet to begin serving the second six-month term in segregation.
The named defendants are: Officer Jennifer Hecht; Officer Nelson; Officer Lance W.
Phelps; Timothy R. Veath; and Tonya D. Kenner. Plaintiff seeks nominal, compensatory, and
punitive damages, as well as affirmative injunctive relief in the form of having one of the two
disciplinary convictions expunged.
Based on the allegations in the complaint, the Court finds it convenient to divide the pro
se action into three counts. The parties and the Court will use these designations in all future

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pleadings and orders, unless otherwise directed by a judicial officer of this Court.

The

designation of these counts does not constitute an opinion as to their merit.
Count 1: Defendants subjected Plaintiff to “double jeopardy” in violation of
the Fifth Amendment;
Count 2: Defendants denied Plaintiff due process in violation of the
Fourteenth Amendment; and
Count 3: By meting out two punishments for the same conduct, Defendants
subjected Plaintiff to cruel and unusual punishment in violation of
the Eighth Amendment. 1
Discussion
As a preliminary matter, the Court observes that it is not entirely clear that Plaintiff was
punished twice for the same offense. The first disciplinary ticket and proceeding pertained to a
single charge of assaulting an inmate—inmate Sutherland. The second ticket and proceeding
pertained to the assault upon inmate Sutherland and to a charge regarding gang activity. In any
event, for the reasons that follow, all three of Plaintiff Barnes’ constitutional claims—and,
therefore, this action—must be dismissed.
Relative to Count 1, the Fifth Amendment’s Double Jeopardy Clause protects against
prosecuting a person for the same crime after conviction and subjecting a person to multiple
punishments for the same crime. United States v. Halper, 490 U.S. 435, 440 (1989). However,
double jeopardy principles do not apply in the prison disciplinary context.

See Meeks v.

McBride, 81 F.3d 717, 721-22 (7th Cir. 1996); Garrity v. Fiedler, 41 F.3d 1150, 1152 (7th Cir.

1

The complaint is not construed as asserting an Eighth Amendment claim regarding the conditions of
Plaintiff’s confinement. Any such claim would be dismissed because the named defendants are not
sufficiently linked to the conditions of confinement for liability to attach. “[T]o be liable under [Section]
1983, an individual defendant must have caused or participated in a constitutional deprivation.” Pepper v.
Village of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005) (citations omitted). As will be discussed in
greater detail relative to the due process claim, the conditions in segregation appear to have been detailed
in order to adequately plead the due process claim.

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1994). Prison disciplinary sanctions are civil in nature, not criminal for purposes of the Double
Jeopardy Clause. Ford v. Bender, 768 F.3d 15, 25 (1st Cir. 2014). Therefore, Count 1 will be
dismissed with prejudice. Nevertheless, knowingly filing duplicative charges and imposing a
duplicative punishment falls within the realm of the Due Process Clause.
Whether the sort of arbitrary abuse of authority alleged by Plaintiff is properly analyzed
under principles of substantive due process or procedural due process is far from clear, although
procedural due process appears to be the better tack. See Leslie v. Doyle, 125 F.3d 1132, 1136
(7th Cir. 1998).

Regardless, no due process claim can succeed based upon Plaintiff’s

allegations.
Substantive due process and procedural due process claims must rest upon a liberty
interest. See Hayden ex rel. A.H. v. Greensburg Community School Corp., 743 F.3d 569, 574-75
(7th Cir. 2014) (in re substantive due process); see also Armato v. Grounds, 766 F.3d 713, 721722 (7th Cir. 2014) (in re procedural due process). Placement in disciplinary segregation may
trigger a liberty interest, if the length of time is substantial or the conditions are unusually harsh.
See Townsend v. Cooper, 759 F.3d 678, 687 (7th Cir. 2014). Under Sandin v. Conner, 515 U.S.
472 (1995), a prisoner is entitled to procedural due process protections before being subjected to
segregation imposing “an atypical and significant hardship.” Id. at 486. The Court of Appeals
for the Seventh Circuit has described this threshold as being triggered by “conditions materially
more onerous than ‘the ordinary incidents of prison life.’ ” Marion v. Radtke, 641 F.3d 874, 875
(7th Cir. 2011) (quoting Sandin, 515 U.S. at 484) (emphasis added). In Plaintiff’s situation,
neither his length of confinement in segregation nor the conditions of confinement trigger due
process protections.

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Plaintiff does not contest the basis of a disciplinary conviction for assaulting inmate
Sutherland; rather, he takes issue with being convicted and punished twice for the same
disciplinary infraction (see Doc. 1, p. 8, ¶ 16). Thus, it is the second six month term in
segregation that is at issue, as opposed to the combined twelve month term. Six months in
segregation, alone, is not a protectable liberty interest. See Marion v. Columbia Corr. Inst., 559
F.3d 693, 698 (7th Cir.2009) (six month segregation term, by itself, was insufficient to trigger
due process rights).
Regarding the conditions of confinement in segregation, Plaintiff complains that he is
“restricted from carrying out the ordinary incidents of prison life that he is lawfully entitled to
had he not been unconstitutionally held in segregation” [sic] (Doc. 1, p. 11). He also describes
being held in “a small isolated dirty cell where inmates are not permitted cleaning supplies such
as disinfectant which they are given to clean their cells when they are not in segregation”
[sic](Doc. 1, p. 11). That is by no means a description of materially more onerous conditions
imposing an atypical and significant hardship. Therefore, Count 2, the due process claim, will be
dismissed with prejudice.
Count 3 focuses on the fact that Plaintiff’s time in disciplinary segregation has been
doubled, amounting to cruel and unusual punishment. The Eighth Amendment prohibits “cruel
and unusual” punishment, which generally encompasses a claim such as this, regarding an abuse
of power. Leslie, 125 F.3d at 1137(citing Hudson v. Palmer, 468 U.S. 517 (1984); Johnson v.
Phelan, 69 F.3d 144, 147 (7th Cir. 1995); Williams v. Boles, 841 F.2d 181, 183 (7th Cir. 1988)).
However, “the Constitution does not create a cause of action for arbitrary and purposeless acts by
officials per se, it prohibits the abuse of power that effects a significant deprivation.” Leslie, 125
F.3d at 1137 (internal citation omitted; emphasis in original). Again, an additional six months in

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disciplinary segregation does not rise to that level—it does not “shock the conscience.” Id.
(citing Rochin v. California, 342 U.S. 165, 172 (1952) (a due process case)). Consequently,
Count 3, the Eighth Amendment claim, will be dismissed with prejudice.
Disposition
IT IS HEREBY ORDERED that COUNTS 1-3 are DISMISSED with prejudice;
consequently, this entire action is DISMISSED with prejudice.

Judgment will enter

accordingly. Because the complaint fails to state a single claim upon which relief can be
granted, a strike will be assessed against Plaintiff Barnes for purposes of 28 U.S.C. § 1915(g).
Plaintiff is reminded that, although the action has been dismissed, his obligation to pay
the filing fee for this action was incurred at the time the action was filed, thus the filing fee
remains due and payable. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467
(7th Cir. 1998). The Court notes that the filing fee was paid in full yesterday.
IT IS SO ORDERED.
DATED: December 11, 2014

__________________________
NANCY J. ROSENSTENGEL
United States District Judge

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