Shane Kitterman v. Tracie Newton, et al
Filing
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. After Kitterman was granted leave to appeal in forma pauperis in this case, he incurred a third strike under the provisions of 28 U.S.C. 1915(g). Kitterman v. Norton, 2018 WL 1240487 at *6 (S.D. Ill. Mar. 9, 2018). If Kitterman cannot make the necessary showing of imminent physical danger, he shall be required to prepay the full filing fee for any future lawsuit he may file while incarcerated, or face dismissal of the suit. Joel M. Flaum, Circuit Judge; Frank H. Easterbrook, Circuit Judge and Amy C. Barrett, Circuit Judge. [6922366-1] [6922366] [17-3330]--[Text updated 05/04/2018 by JR.]
Case: 17-3330
Document: 18
Filed: 05/03/2018
Pages: 3
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 3, 2018*
Decided May 3, 2018
Before
JOEL M. FLAUM, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 17‐3330
SHANE ALLEN KITTERMAN,
Plaintiff‐Appellant,
v.
TRACIE NEWTON, et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 17‐cv‐733‐MJR
Michael J. Reagan,
Chief Judge.
O R D E R
Shane Kitterman, an Illinois prisoner, appeals the dismissal at screening of his
suit under 42 U.S.C. § 1983 alleging that police officers violated his due‐process rights
by manipulating his sex‐offender registration records, extending his registration term,
and denying him a hearing on his duty to register. Because these claims are barred by
Heck v. Humphrey, 512 U.S. 477 (1994), we affirm the district court’s judgment.
* The defendants were not served with process in the district court and are not
participating in this appeal. We have agreed to decide the case without oral argument
because the appellant’s brief and record adequately present the facts and legal
arguments, and oral argument would not significantly aid the court. See FED. R. APP. P.
34(a)(2)(C).
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Kitterman alleges that he has been wrongly imprisoned for failing to register as a
sex offender; he believes that he was not under any duty to do so. As he set forth in his
complaint, he pleaded guilty in 1996 to aggravated criminal sexual assault of a minor,
with the understanding that his plea agreement required him to register as a sex
offender only during his term of intensive probation, which ended in March 1997. But
the following year, his name remained on the state’s list of required registrants, he says,
because Defendant Tracie Newton (an officer in the Sex Offender Registration Unit of
the Illinois State Police) deliberately manipulated his information in the registry.
Kitterman’s attempts to correct the error with the state police were unsuccessful. He
says that he has submitted over 200 requests for a hearing. Even though the police
maintain that he had a ten‐year registration requirement that has been administratively
extended several times for failing to register or registering late, Kitterman discounts
those explanations as pretext. He insists that he remains on the list of sex offenders only
because Newton falsely recorded his obligations. Kitterman also faults Newton’s
supervisor, Leo Schmitz, for failing to intervene, and he accuses a prosecutor, other
registration officials, and police officers from the cities of Belleville and O’Fallon of
participating in a conspiracy to infringe upon his rights.
The district judge screened Kitterman’s complaint, see 28 U.S.C. § 1915A, and
dismissed it without prejudice because his claims are barred by Heck v. Humphrey,
512 U.S. 477 (1994). Under Heck, claims for constitutional violations under § 1983 are
unavailable to prisoners if those claims necessarily imply the invalidity of a conviction
or sentence. Id. at 486–87. The district judge explained that any ruling that defendants
violated Kitterman’s constitutional rights by wrongly extending and enforcing his
registration requirement would necessarily imply that he should not have been
convicted and imprisoned for failing to register.
In a motion for reconsideration, Kitterman disputed whether Heck applied to his
claims, and the judge denied the motion. The judge concluded that his original decision
was correct and alternatively that, even if Heck did not apply, Kitterman would not
prevail on the merits because he had not shown a denial of due process. The judge
found Kitterman’s argument on the merits case “undeniably comparable” to Murphy v.
Rychlowski, 868 F.3d 561 (7th Cir. 2017), in which we concluded that no hearing is
required when an individual has been required to register as a sex offender as a result
of a criminal adjudication, and when that individual is able to contact the police to
dispute the registration requirements. Id. at 567–68. The judge added that ordering a
hearing on Kitterman’s sex‐offender registration requirement would be “nonsensical”
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and a “waste of government resources” because at the time of the decision, the state
judiciary was adjudicating the duration of his registration requirement in his appeal of
his conviction.
On appeal Kitterman clarifies that the “district court has misconstrued the relief”
he seeks—he requests only a hearing. Because the remedy he seeks is procedural,
Kitterman argues that he is entitled to an exception contemplated in Heck that
challenges to “wrong procedures” are not barred because the process sought does not
necessarily imply the invalidity of a current conviction or sentence. 512 U.S. at 483; see
also Spencer v. Kemna, 523 U.S. 1, 17 (1998).
Kitterman may be asking only for a hearing, but his claim fails because he
maintains that he is innocent. He says that he needs a hearing because it will reveal that,
when he was arrested and convicted for failing to register, “more than 6 years” had
passed since he was subject to any registration requirement. And that contention is
inconsistent with his conviction, so his claim is barred. Okoro v. Callaghan, 324 F.3d 488
(7th Cir. 2003); see also Gilbert v. Cook, 512 F.3d 899, 902 (7th Cir. 2008). He may not
proceed on this claim until his conviction for failing to register has been reversed or
expunged. Heck, 512 U.S. at 486–87.
Kitterman also challenges the denial of his motion for reconsideration on
grounds that Murphy is distinguishable, but we need not address this challenge because
his claims are Heck‐barred.
After Kitterman was granted leave to appeal in forma pauperis in this case, he
incurred a third “strike” under the provisions of 28 U.S.C. § 1915(g). Kitterman v. Norton,
2018 WL 1240487 at *6 (S.D. Ill. Mar. 9, 2018) (finding failure to state a claim in another
complaint regarding his sex‐offender registration requirement). Accordingly, if
Kitterman seeks to file any future civil action while he is a prisoner, he will no longer be
eligible to pay a filing fee in installments using the in forma pauperis provisions of
§ 1915(a) and (b), unless he can establish that he is “under imminent danger of serious
physical injury.” 28 U.S.C. § 1915(g). If Kitterman cannot make the necessary showing
of imminent physical danger, he shall be required to prepay the full filing fee for any
future lawsuit he may file while incarcerated, or face dismissal of the suit.
AFFIRMED
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