Barnes v. Veath et al

Filing 42

ORDER DENYING 22 Objection to Magistrate Judge Wilkerson's Order dated February 22, 2016. Magistrate Judge Wilkerson's Order dated February 22, 2016 is AFFIRMED. Signed by Judge Nancy J. Rosenstengel on 3/13/2017. (bak)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LEON BARNES,
Plaintiff,
vs.
TIMOTHY R. VEATH and TONYA D.
KENNER,
Defendants.

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Case No. 14-CV-1277-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is currently before the Court on Plaintiff Leon Barnes’s objection to
Magistrate Judge Donald G. Wilkerson’s Order dated February 22, 2016, which denied
Plaintiff’s request to amend his complaint in order to add Lance Phelps as a defendant
(Doc. 22). For the reasons explained below, the appeal is denied, and Magistrate Judge
Wilkerson’s Order dated February 22, 2016 is affirmed.
BACKGROUND
Plaintiff previously alleged a claim against Lance Phelps for denying him due
process in violation of the Fourteenth Amendment and by subjecting him to cruel and
unusual punishment in violation of the Eighth Amendment (Doc. 9). On September 21,
2015, the undersigned allowed Counts 2 and 3 to proceed on the basis that “it is possible
that the Adjustment Committee—Timothy R. Veath and Tonya D. Kenner—knowingly
and deliberately imposed a second punishment for a single offense, which could violate
the Due Process Clause of the Fourteenth Amendment and amount to cruel and unusual
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punishment in violation of the Eighth Amendment.” (Doc. 9, p. 6). Finding that there
was no suggestion that Defendant Phelps “knew that the ticket was (arguably)
duplicative or that he had any involvement in the Adjustment Committee’s decisions
regarding guilt and punishment,” the Court dismissed Defendant Phelps from this
action without prejudice (Doc. 9, p. 7-8).
Approximately two months later, on November 30, 2015, Plaintiff filed a motion
seeking leave to amend his complaint (Doc. 18). The proposed first amended complaint
sought to reinstate his claims against Defendant Phelps. Magistrate Judge Donald
Wilkerson denied Plaintiff’s motion on February 22, 2016 (Doc. 21). Specifically,
Magistrate Judge Wilkerson noted that Plaintiff’s new allegations against Defendant
Phelps “do not indicate that [Defendant] Phelps had any involvement in the Adjustment
Committee’s decisions regarding guilt and punishment and, although his actions may be
considered negligent, they are not sufficient to rise to a constitutional violation” (Doc. 21,
p. 2-3). Therefore, leave to amend was denied (Id.).
Plaintiff then sought reconsideration of that ruling (Doc. 22), which actually
appears to be an appeal of Magistrate Judge Wilkerson’s Order directed to the
undersigned.
DISCUSSION
The Court may modify or reverse a decision of a magistrate judge on a
nondispositive issue upon a showing that the magistrate judge’s decision is “clearly
erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); FED. R. CIV. P. 72(a); SDIL-LR
73.1(a). A decision is clearly erroneous “only if the district court is left with the definite
and firm conviction that a mistake has been made.” Weeks v. Samsung Heavy Indus. Co.,
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Ltd., 126 F.3d 926, 943 (7th Cir. 1997). See also Parts & Elec. Motors, Inc. v. Sterling Elec., Inc.,
866 F.2d 228, 233 (7th Cir. 1988) (“To be clearly erroneous, a decision must strike [the
court] as more than just maybe or probably wrong; it must . . . strike [the court] as wrong
with the force of a five-week-old, unrefrigerated dead fish.”) (cited by S Indus., Inc. v.
Centra 2000, Inc., 249 F.3d 625, 627 (7th Cir. 2001)).
Generally, a motion for leave to amend a pleading is evaluated under Rule
15(a)(2), which provides that courts “should freely give leave when justice so requires.”
FED. R. CIV. P. 15(a)(2). However, “courts in their sound discretion may deny a proposed
amendment if the moving party has unduly delayed in filing a motion, if the opposing
party would suffer undue prejudice, or if the pleading is futile.” Soltys v. Costello, 520
F.3d 737, 743 (7th Cir. 2008) (quoting Compania Mgmt. Co. v. Rooks, Pitts & Poust, 290 F.3d
843, 848-49 (7th Cir. 2002)).
In his objection, Plaintiff argues that Defendant Phelps did not have to have
participated directly in the deprivation as he was “fully aware that Plaintiff had already
received a ticket and was not satisfied and initiated the ‘duplicitous’ infraction, which is
undoubtedly the affirmative link between the action complained about by the Plaintiff.”
(Doc. 22, p. 3). Plaintiff indicates that this awareness by Defendant Phelps is
demonstrated by the fact that, sometime in May 2013 (after the adjustment committee
decision), Plaintiff alerted Defendant Phelps that he was serving six additional months,
and Defendant Phelps indicated that he would check it out and get it fixed, but did
nothing to correct his own mistake.
The Court recognizes that personal responsibility can be found “if the conduct

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causing the constitutional deprivation occurs at [the officer’s] direction or with [his]
knowledge and consent.’” Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995) (citing
Smith v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985)). “That is, he ‘must know about the
conduct and facilitate it, approve it, condone it, or turn a blind eye . . . .’” Id. (citing Jones
v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988)). But the Court agrees with Magistrate
Judge Wilkerson’s assessment that Plaintiff’s allegations do not suggest that Defendant
Phelps knew that the ticket was duplicative when he wrote it, simply because Plaintiff
had a conversation with him after the fact, and Defendant Phelps never addressed his
complaints. Nor was Defendant Phelps involved in the disciplinary hearing that resulted
in the imposition of punishment.
CONCLUSION
Accordingly, Plaintiff Leon Barnes’s objection to Magistrate Judge Wilkerson’s
Order dated February 22, 2016 (Doc. 22) is DENIED, and Magistrate Judge Wilkerson’s
Order dated February 22, 2016 (Doc. 21) is AFFIRMED.
IT IS SO ORDERED.
DATED: March 13, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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