Barnes v. Veath et al

Filing 9

IT IS HEREBY ORDERED that Plaintiff Barnes's Rule 59(e) motion (Doc. 6) is GRANTED in part AND DENIED in part. Accordingly, the Court's Order and Judgment (Docs. 4, 5) are VACATED, and the "strike" assessed against Plaintiff for p urposes of 28 U.S.C. § 1915(g) is also VACATED. The Clerk of Court shall REOPEN this action.IT IS FURTHER ORDERED that COUNT 1, the "double jeopardy" claim, is DISMISSED with prejudice.IT IS FURTHER ORDERED that Defendants LANCE W. PHE LPS, JENNIFER HECHT and OFFICER NELSON are DISMISSED without prejudice.IT IS FURTHER ORDERED that COUNT 2 and COUNT 3 shall PROCEED against Defendants TIMOTHY R. VEATH and TONYA D. KENNER.The Clerk of Court shall prepare for Defendants TIMOTHY R. VEATH and TONYA D. KENNER: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Judge Nancy J. Rosenstengel on 9/21/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LEON BARNES,
No. R-40961,

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Plaintiff,
vs.
TIMOTHY R. VEATH,
TONY D. KENNER,
LANCE W. PHELPS,
JENNIFER HECHT, and
OFFICER NELSON,
Defendants.

Case No. 14-cv-01277-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Leon Barnes, an inmate in Stateville 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. Upon preliminary review, the complaint was dismissed with prejudice and
judgment was entered accordingly (Docs. 4, 5).
Pursuant to Federal Rule of Civil Procedure 59(e), Barnes now moves to alter or amend
that judgment (Doc. 6). For the reasons that follow, the motion will be granted, at least in part.
Background
The Complaint
According to the complaint (Doc. 1), 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
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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,
apparently taking over the case from Nelson and Hecht. The two disciplinary tickets and all
charges stem from the January 15, 2013, incident (compare Doc. 1, p. 16 and pp. 17-19).
The Adjustment Committee—again including Veath, along with Tonya D. 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 charges. 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 charges 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 12 months in segregation. Plaintiff’s subsequent

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grievance was denied out of hand because it was deemed untimely—submitted more than 60
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 previously recognized the following
possible claims:
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.
The Order of Dismissal
The Court’s initial analysis of the complaint recognized that it is not entirely clear that
Plaintiff Barnes 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, all three of Plaintiff Barnes’s constitutional claims were dismissed.
Count 1 was dismissed because the Fifth Amendment’s Double Jeopardy Clause does 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. 1994). Prison disciplinary sanctions are

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civil in nature, not criminal for purposes of the Double Jeopardy Clause. Ford v. Bender, 768
F.3d 15, 25 (1st Cir. 2014).
The due process claim in Count 2 was dismissed because, although knowingly filing
duplicative charges and imposing a duplicative punishment falls within the realm of the Due
Process Clause, the Court did not perceive from the complaint that a liberty interest was at stake.
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). The Court concluded that—based on the allegations in the
complaint—neither Barnes’s length of confinement in segregation nor the conditions of
confinement triggered due process protections.
More specifically, it was noted that 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, the Court
perceived that it is the second six-month term in segregation that is at issue, as opposed to the
combined 12-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).

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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 was not viewed by the Court as a description of materially more onerous
conditions imposing an atypical and significant hardship. Therefore, Count 2, the due process
claim, was dismissed with prejudice.
Count 3, regarding whether the alleged doubling of Plaintiff’s time in disciplinary
segregation amounted to cruel and unusual punishment, was also dismissed. It was recognized
that the Eighth Amendment prohibits “cruel and unusual” punishment, including the 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)).
The Constitution also 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 disciplinary segregation was not perceived as rising to a level that shocked the
conscience. Id. (citing Rochin v. California, 342 U.S. 165, 172 (1952) (a due process case)).
Rule 59(e) Motion
Plaintiff Barnes now argues that the order of dismissal and judgment should be altered or
vacated for several reasons. Barnes views the second disciplinary ticket as impermissibly being
intended to double his punishment for the assault upon inmate Sutherland—a means to impose a
longer disciplinary sentence than is prescribed by prison rules. He contends Defendants acted “in
bad faith” (Doc. 5, p. 5). And Barnes again asserts that the conditions in segregation were so

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harsh as to “shock the general conscience” (Doc. 6, p. 3). Rather than elaborating on the
assertion in the complaint that his cell was dirty, the motion focuses on the fact that he was
isolated in a solitary cell, which is much different from the conditions of ordinary prison life
(Doc. 5, pp. 3-4). The Rule 59(e) motion also elaborates that the second disciplinary
conviction—the Adjustment Committee Report—does not state the facts and rationale for the
Committee’s conclusion(s), as mandate by Wolff v. McDonnell, 418 U.S. 539 (1974).
Analysis
Count 1
Plaintiff’s double jeopardy claim, Count 1, fails as a matter of law and, therefore, cannot
be revived. The Fifth Amendment’s Double Jeopardy Clause does not apply in the prison
disciplinary context. See Ford v. Bender, 768 F.3d 15, 25 (1st Cir. 2014); Meeks v. McBride, 81
F.3d 717, 721-22 (7th Cir. 1996); Garrity v. Fiedler, 41 F.3d 1150, 1152 (7th Cir. 1994). The
dismissal of Count 1 with prejudice shall stand.
Counts 2 and 3
The Court has always recognized that it is not entirely clear that Plaintiff Barnes was
punished twice for the same offense. The first disciplinary ticket and disciplinary 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. Thus, 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 cruel and
unusual punishment in violation of the Eighth Amendment. Furthermore, although the
Adjustment Committee did offer a detailed statement of reasons for why Barnes was convicted,

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the report indicates that Plaintiff was found guilty of both assaulting Southerland and gang
activity. How the two disciplinary offenses factored into the punishment imposed remains to be
seen. In addition, depending on the exact circumstances and length of time, solitary confinement
could implicate a liberty interest.
Because key questions remain, the Court will now recognize colorable Fourteenth and
Eight Amendment claims, but that does not end the analysis.
Personal Involvement
Section 1983 creates a cause of action based on personal liability and predicated upon
fault; thus, “to 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 already noted, it is clear that Adjustment Committee members Veath and Kenner were
involved in the second disciplinary hearing, which is at the heart of Counts 2 and 3. The other
three named defendants, however, were not sufficiently involved in the disciplinary hearing and
imposition of punishment that are at issue Counts 2 and 3.
Jennifer Hecht and Officer Nelson merely told Plaintiff (after he received the first
disciplinary report from George Holton) that any second disciplinary report issued by Internal
Affairs should trump the first report. Hecht and Nelson voicing their opinion does not amount to
a constitutional violation. The second ticket had not even been issued, and there is no link
between Hecht and Nelson and the Adjustment Committee’s decision to (arguably) impose a
second punishment for a single infraction. Hecht and Nelson will be dismissed without prejudice.
Lance W. Phelps issued the second disciplinary report, but there is no suggestion that he
knew that the ticket was (arguably) duplicative or that he had any involvement in the Adjustment

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Committee’s decisions regarding guilt and punishment. Phelps, therefore, also will be dismissed
without prejudice.
Disposition
IT IS HEREBY ORDERED that Plaintiff Barnes’s Rule 59(e) motion (Doc. 6) is
GRANTED in part AND DENIED in part. Accordingly, the Court’s Order and Judgment
(Docs. 4, 5) are VACATED, and the “strike” assessed against Plaintiff for purposes of 28 U.S.C.
§ 1915(g) is also VACATED. The Clerk of Court shall REOPEN this action.
IT IS FURTHER ORDERED that COUNT 1, the “double jeopardy” claim, is
DISMISSED with prejudice.
IT IS FURTHER ORDERED that Defendants LANCE W. PHELPS, JENNIFER
HECHT and OFFICER NELSON are DISMISSED without prejudice.
IT IS FURTHER ORDERED that COUNT 2 and COUNT 3 shall PROCEED against
Defendants TIMOTHY R. VEATH and TONYA D. KENNER.
The Clerk of Court shall prepare for Defendants TIMOTHY R. VEATH and TONYA
D. KENNER: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons),
and (2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms,
a copy of the complaint, and this Memorandum and Order to each Defendant’s place of
employment as identified by Plaintiff.
If a Defendant fails to sign and return the Waiver of Service of Summons (Form 6) to the
Clerk within 30 days from the date the forms were sent, the Clerk shall take appropriate steps to
effect formal service on that Defendant, and the Court will require that Defendant to pay the full
costs of formal service, to the extent authorized by the Federal Rules of Civil Procedure.
With respect to a Defendant who no longer can be found at the work address provided by

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Plaintiff, the employer shall furnish the Clerk with the Defendant’s current work address, or, if
not known, the Defendant’s last-known address. This information shall be used only for sending
the forms as directed above or for formally effecting service. Any documentation of the address
shall be retained only by the Clerk. Address information shall not be maintained in the court file
or disclosed by the Clerk.
Plaintiff shall serve upon Defendants (or upon defense counsel once an appearance is
entered), a copy of every pleading or other document submitted for consideration by the Court.
Plaintiff shall include with the original paper to be filed a certificate stating the date on which a
true and correct copy of the document was served on Defendants or counsel. Any paper received
by a district judge or magistrate judge that has not been filed with the Clerk or that fails to
include a certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States
Magistrate Judge Donald G. Wilkerson for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to a United States Magistrate for
disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties consent to
such a referral.
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than 7
days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action

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for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: September 21, 2015

___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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