Kitterman v. Illinois State Police Department et al

Filing 26

MERIT REVIEW OPINION: Plaintiff's First Amended Complaint is dismissed without prejudice for failure to state a claim upon which relief may be granted under 42 U.S.C. § 1983. The claims against the State of Illinois and the Illinois State Police are barred by the Eleventh Amendment. Plaintiffs remaining § 1983 damages claims against Defendants Newton and Schmitz are barred by Heck v. Humphrey, 512 U.S. 477 (1994). All pending motions are DENIED AS MOOT. THIS CASE IS CLOSED. If P laintiff wishes to appeal this dismissal, he must file a notice of appeal with this Court within 30 days of the entry of judgment. Fed. R. App. P. 4(a). A motion for leave to appeal in forma pauperis should set forth the issues Plaintiff plans to present on appeal. See Fed. R. App. P. 24(a)(1)(C). If Plaintiff does choose to appeal, he will be liable for the $505 appellate filing fee irrespective of the outcome of the appeal. Entered by Judge Sue E. Myerscough on 5/7/2018. (ME, ilcd)

E-FILED

Tuesday, 08 May, 2018 04:00:07 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
SHANE ALLEN KITTERMAN,
Plaintiff,
v.
ILLINOIS STATE POLICE
DEPARTMENT; TRACIE
NEWTON, in her individual
capacity and her official
capacity as the Supervisor of
the Sex Offender Registration
Unit; LEO P. SCHMITZ, in his
individual capacity and his
official capacity as Director;
and State of Illinois,
Defendants.

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18-CV-3092

MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in the Shawnee
Correctional Center. His First Amended Complaint is before the
Court for a merit review pursuant to 28 U.S.C. § 1915A. This
section requires the Court to identify cognizable claims stated by
the complaint and dismiss claims that are not cognizable. In
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reviewing the complaint, the Court accepts the factual allegations
as true, liberally construing them in Plaintiff's favor and taking
Plaintiff’s pro se status into account. Turley v. Rednour, 729 F.3d
645, 649 (7th Cir. 2013). However, conclusory statements and
labels are insufficient. Enough facts must be provided to "'state a
claim for relief that is plausible on its face.'" Alexander v. U.S., 721
F.3d 418, 422 (7th Cir. 2013) (quoted cite omitted).
For the reasons that follow, Plaintiff’s First Amended
Complaint is DISMISSED. Defendants State of Illinois and Illinois
State Police are immune from liability under the Eleventh
Amendment. Plaintiff’s remaining damages claims are barred by
Heck v. Humphrey, 512 U.S. 477 (1994).
I. BACKGROUND
Plaintiff originally filed his complaint in the Northern District
of Illinois. That court transferred the case to the Southern District
of Illinois. On February 15, 2018, Chief Judge Michael J. Reagan
granted Plaintiff’s motion to proceed informa pauperis.1 On April

1

 When Judge Reagan granted Plaintiff IFP, Plaintiff only had two “strikes.”

Kitterman v. Baricevic, No. 16-cv-01099 (S.D. Ill. ) (dismissed Oct. 31, 2016);
Kitterman v. Newton, No. 17-cv-00733 (S.D. Ill.) (dismissed Oct. 25, 2017).
Plaintiff has since been assessed additional strikes. See Kitterman v. Norton,

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23, 2018, Plaintiff filed a First Amended Complaint (d/e 22)
narrowing the named defendants. Judge Reagan transferred the
case to this Court because the majority of events giving rise to the
action seemed to have occurred in this district and this district
appears to be where each individual defendant may be found or
resides. Opinion (d/e 23).
II. FACTS
Plaintiff’s First Amended Complaint, brought pursuant to 42
U.S.C. § 1983, is divided into six counts against Defendants Illinois
State Police; Tracie Newton, supervisor of the Sex Offender
Registration Unit, in her official and individual capacity; Leo
Schmitz, Director of the Illinois State Police, in his individual and
official capacity; and the State of Illinois, seeking to declare an
Illinois state unconstitutional on its face and as applied.
The Court takes judicial notice of Plaintiff’s criminal cases
available on the St. Clair County, Illinois Circuit Court website.
http://www.circuitclerk.co.st-clair.il.us/courts (last visited May 7,
2018). See Olson v. Champaign Cnty., Ill., 784 F.3d 1093, 1096 n.

18-cv-190 (S.D. Ill.) (dismissed March 9, 2018); Kitterman v. McGlynn, 18-cv157 (S.D. Ill.) (dismissed April 10, 2018).

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4 (7th Cir. 2015). In January 1996, Plaintiff was convicted of the
amended charge of aggravated criminal sexual abuse, 720 ILCS
5/12-16(c)(1)(i), and sentenced to four years’ probation. His term of
probation was subsequently revoked, and, in March 1997, Plaintiff
was sentenced to four years’ imprisonment. He was released after
serving his time.
Many years later, Plaintiff was charged with failure to register
as a sex offender in St. Clair County Case No. 12-CF-1204, No. 14CF-1422, and No. 15-CF-373. A jury found Plaintiff guilty in case
No. 14-CF-1422, and Plaintiff pleaded guilty in the other two cases.
On August 20, 2015, Plaintiff was sentenced to three years’
imprisonment in each case. Plaintiff is currently incarcerated for
these offenses with a projected parole date of May 16, 2018.
Plaintiff’s First Amended Complaint contains the following
allegations. Plaintiff was only required to register as a sex offender
for ten years following his 1996 conviction. His plea agreement for
the 1996 conviction prevented extension of the registration period.
Newton and Schmitz nonetheless extended Plaintiff’s registration
period after the 10-year term expired, which led to his convictions
for failure to register.
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In 2013, Newton, the supervisor of the Illinois State Police Sex
Offender Registration Unit, conducted an administrative review of
Plaintiff’s history of registration and issued a brief memorializing
her findings. Plaintiff sought, without success, administrative
review of Newton’s findings by submitting over 202 requests to the
Illinois State Police Offender Registration Unit. Newton purportedly
failed to forward Plaintiff’s requests for a hearing to the proper
Department within the Illinois State Police. Plaintiff alleges that
Newton and/or Schmitz:


Changed Plaintiff’s 1996 conviction information to reflect
that he was convicted of a Class X felony instead of a Class 2
felony; 



Failed to provide Plaintiff with ample notice of his duty to
register; 



Designated Plaintiff a “Sexual Predator,” “Sexually Violent
Person,” and “Sexually Dangerous Person,” which changed
Plaintiff’s registration requirements from 10 years to
“lifetime”; 



Caused policing agencies to turn Plaintiff away and refuse to
conduct his registration after Plaintiff complained about
Newton’s conduct in retaliation for Plaintiff’s complaints; 



Instituted a policy, custom, or practice of automatically
extending the period of registration for persons like Plaintiff,
knowing that the failure to register is based on police
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misconduct and incompetence in the process of registration
and not the unlawful actions of the registering citizen. 
See Count 1 (alleging due process violation claim against the Illinois
State Police, Newton, and Schmitz); Count 3 (alleging
unconstitutional policy of extending registration requirements claim
against the Illinois State Police, Newton, and Schmitz); Count 4
(alleging First Amendment retaliation claim against the Illinois State
Police, Newton, and Schmitz); Count 6 (conspiracy claim brought
against the Illinois State Police, Newton, and Schmitz). In Counts
1, 3, 4, and 6, Plaintiff seeks compensatory and punitive damages.
Plaintiff also brings two additional claims solely against the
State of Illinois. In Count 2, Plaintiff alleges that the provision of
the Illinois Sex Offender Registration Act that allows the Illinois
State Police to extend an offender’s registration period is
unconstitutional. 730 ILCS 150/7 (providing that the Director of
State Police can extend for 10 years the registration period of any
sex offender who fails to comply with the Illinois Sex Offender
Registration Act). In Count 5, Plaintiff alleges that the State
breached the parties’ 1996 plea agreement because Plaintiff has
been notified that a condition of his mandatory supervised release
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following the completion of his sentences for the failure to register
convictions will resurrect the requirement that he register as a sex
offender. Plaintiff seeks to enjoin the State from imposing a
condition of mandatory supervised release that resurrects a duty to
register that has expired, assist Plaintiff in finding a host site, and
provide an immediate hearing to determine Plaintiff’s eligibility to
participate in mandatory supervised release.
Plaintiff has previously filed, without success, numerous
complaints relating to these facts against various defendants,
including Newton and Schmitz. See Kitterman v. Baricevic, No. 161099, 2016 WL 6432615 (S.D. Ill. Oct. 31, 2016) (finding judge and
state’s attorney immune); Kitterman v. Director, No. 16-cv-00014,
2016 WL 6582586 (S.D. Ill. Nov. 7, 2016) (dismissal for failure to
comply with Rule 8); Kitterman v. Norton, No. 18-cv-00190, 2018
WL 1240487 (S.D. Ill. March 9, 2018) (finding the plaintiff could not
challenge terms of supervised release under § 1983, claims barred
by Heck v. Humphrey, and some of the claims were not ripe);
Kitterman v. McGlynn, No. 18-cv-157, 2018 WL 1729350 (S.D. Ill.
Apr. 10, 2018) (claims barred by Heck v. Humphrey); Kitterman v.
Newton, No. 17-cv-733, 2017 WL 6805697 (S.D. Ill. Oct. 25, 2017)
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(claims barred by Heck v. Humphrey), aff’d No. 17-3330, 2018 WL
2068956 (7th Cir. May 3, 2018). Plaintiff has also filed a motion
under 28 U.S.C. § 2254 challenging his St. Clair County convictions
for failure to register as a sex offender. That case is stayed while
Plaintiff exhausts his state court remedies. See Kitterrman v.
Garnett, Southern District of Illinois, Case No. 16-cv-1134.
III. ANALYSIS
At the outset, the Illinois State Police and the State of Illinois
are entitled to immunity under the Eleventh Amendment because
the State has not waived its Eleventh Amendment immunity. See
Ryan v. Ill. Dep’t of Children & Family Servs., 185 F.3d 751, 758
(7th Cir. 1999) (absent waiver, a state and a state agency are
entitled to immunity under the Eleventh Amendment; also noting
that neither a state nor a state agency is a person for purposes of
§ 1983); Moore v. Ill. State Police, No. 01 C 7231, 2001 WL
1636920, at * 2 (N.D. Ill. Dec. 20, 2001) (the Illinois State Police is a
state agency treated the same as the state itself for purposes of
Eleventh Amendment immunity). Therefore, the claims against the
Illinois State Police and the State of Illinois are dismissed without
prejudice.
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The remaining claims are against Defendants Newton and
Schmitz for damages and are barred by Heck v. Humphrey, 512
U.S. 477, 487 (1994). A plaintiff cannot bring a § 1983 damages
claim that necessarily implies the invalidity of his conviction or
sentence. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)
(holding that a state prisoner’s § 1983 damages claim must be
dismissed if a judgment in favor of the plaintiff would “necessarily
imply the invalidity of his conviction or sentence”).
A judgment in favor of Plaintiff on his claims that Newton and
Schmitz falsified records to cause Plaintiff to have to register, took
action to prevent Plaintiff from being able to register as a sex
offender, had a policy of extending registration requirements, and
conspired to ensure that Plaintiff had to register for life even though
his 10-year registration period had expired would necessarily imply
the invalidity of Plaintiff’s convictions for failure to register as a sex
offender. See Kitterman v. Newton, 2017 WL 6805697, at * 6
(finding that “[a] ruling that the defendants violated Plaintiff’s
constitutional rights based on his allegations that they falsified his
sex offender registration records, required him to register as a sex
offender when he had no obligation to do so, refused to give him a
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hearing to resolve the issue, and applied inapplicable laws to his
situation in violation of the Ex Post Facto Clause of the Constitution
and his original plea agreement . . . would necessarily imply the
invalidity of his present convictions for failure to register as a sex
offender”), aff’d, No. 17-3330, 2018 WL 2068956 (7th Cir. May 3,
2018). Plaintiff cannot bring such claims without first showing that
his conviction or sentence has been reversed, expunged, or declared
invalid. Heck, 512 U.S. at 486-87. Plaintiff cannot make that
showing at this time.
IT IS THEREFORE ORDERED:
Plaintiff's First Amended Complaint is dismissed without
prejudice for failure to state a claim upon which relief may be
granted under 42 U.S.C. § 1983. The claims against the State of
Illinois and the Illinois State Police are barred by the Eleventh
Amendment. Plaintiff’s remaining § 1983 damages claims against
Defendants Newton and Schmitz are barred by Heck v. Humphrey,
512 U.S. 477 (1994). All pending motions are DENIED AS MOOT.
THIS CASE IS CLOSED. If Plaintiff wishes to appeal this dismissal,
he must file a notice of appeal with this Court within 30 days of the
entry of judgment. Fed. R. App. P. 4(a). A motion for leave to
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appeal in forma pauperis should set forth the issues Plaintiff plans
to present on appeal. See Fed. R. App. P. 24(a)(1)(C). If Plaintiff
does choose to appeal, he will be liable for the $505 appellate filing
fee irrespective of the outcome of the appeal.
ENTERED: May 7, 2018
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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