Kitterman v. Dunne et al
Filing
7
ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 2/16/2018. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHANE A. KITTERMAN,
#B-80577
Plaintiff,
vs.
OFFICER DUNNE,
OFFICER SAMMS, and
OFFICER EDWARDS,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
Case No. 18-cv-114-NJR
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
In Kitterman v. Dennison, Case No. 17-cv-290-SMY (S.D. Ill.) (“Original Action”),
Plaintiff Shane A. Kitterman, an inmate of the Illinois Department of Corrections (“IDOC”)
currently housed in Shawnee Correctional Center (“Shawnee”), brought suit pursuant to
42 U.S.C. § 1983 for deprivations of his constitutional rights. The deprivations allegedly
occurred at Shawnee and Big Muddy River Correctional Center. Pursuant to George v. Smith,
507 F.3d 605 (7th Cir. 2007), two Eighth Amendment claims directed against officers at
Shawnee (Count 8 directed against Officer Dunne and Count 9 directed against Officer Dunne,
Officer Samms, and Officer Edwards) were severed from that initial action to form the basis for
this action, Case No. 18-cv-114-NJR.
This case is now before the Court for a preliminary review of those claims 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
1
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.
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 any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 102627 (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
The allegations in Plaintiff’s Complaint (Doc. 2) relevant to this severed action are as
follows: Between April and July 2017, after filing the Original Action, Plaintiff allegedly
became the target of assault by corrections officers at Shawnee. (Doc. 2, p. 18). He describes one
of these assaults by Officer Dunne. Sometime during this time period, the officer ordered
Plaintiff to remove his clothing during a routine strip search conducted pursuant to “normal
practices” while preparing for a scheduled visit. Id. While searching Plaintiff, Officer Dunne
allegedly fondled his genitals. Id. Plaintiff was afraid for his safety. Id. He remained quiet until
he felt safe enough to report the incident to a mental health care provider, who prepared a report.
(Doc. 2, p. 19). When Officer Dunne learned about Plaintiff’s report, he removed a property box
from another inmate’s cell and threw it at Plaintiff. Id. He also reported this incident. Id.
2
On July 13, 2017, Officer Dunne instructed Officer Samms and Officer Edwards to
“[d]eadlock” Plaintiff in his cell and deprive him of food, water, exercise, and contact. (Doc. 2,
p. 19). Plaintiff does not indicate whether they carried out these orders or describe how long he
was subject to these deprivations. Id. He simply alleges that he was placed in solitary
confinement for “several days,” after his wife complained to internal affairs. (Doc. 2, pp. 19-20).
Plaintiff allegedly continued to receive threats from Officer Dunne, but he offers no information
about the dates, frequency, or nature of these threats. (Doc. 2, p. 20).
Discussion
In its Severance Order (Doc. 1), the Court designated the following counts to be severed
into this pro se action. The parties and the Court will continue to use this designation in all future
pleadings and orders, unless otherwise directed by a judicial officer of this Court.
Count 8:
Eighth Amendment deliberate indifference claim against Officer
Dunne for allegedly fondling Plaintiff’s genitals during a routine
strip search at Shawnee sometime between April and July 2017.
Count 9:
Eighth Amendment deliberate indifference claim against Officer
Dunne, Officer Samms and Officer Edwards for subjecting
Plaintiff to a “deadlock” on July 13, 2017, by placing him in his
cell without food, water, exercise or contact for an unspecified
period of time.
Count 8
A strip search violates the Eighth Amendment when it is “conducted in a harassing
manner intended to humiliate and inflict psychological pain.” Calhoun v. DeTella, 319 F.3d 936,
939 (7th Cir. 2003); Fillmore v. Page, 358 F.3d 496, 505 (7th Cir. 2004). Stated another way, the
question is whether there was a legitimate penological reason for both the search and its scope.
Whitman v. Nesic, 368 F.3d 931, 934–35 (7th Cir. 2004).
In this case, Plaintiff alleges that, during a routine strip search, Dunne gratuitously
3
fondled his genitals, causing Plaintiff to fear for his safety. Given these allegations, the Court
cannot dismiss Count 8 at this early stage of the litigation. See Washington v. Hively, 695 F.3d
641, 643 (7th Cir. 2012) (trial necessary on plaintiff’s allegations that guard gratuitously fondled
plaintiff’s testicles during search); Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003) (strip
search conducted in harassing manner intended to humiliate and inflict psychological pain stated
claim).
Accordingly, Count 8 shall receive further review as to Dunne.
Count 9
To establish a constitutional violation with respect to a prison condition, an inmate must
demonstrate that: (1) his condition was objectively serious; and (2) the defendant acted with
deliberate indifferent to the condition. Board v. Farnham, 394 F.3d 469, 479–80 (7th Cir. 2005).
A combination of conditions may violate the Eighth Amendment if they have a “mutually
enforcing effect that produces the deprivation of a single, identifiable human need.” See Budd v.
Motley, 711 F.3d 840, 842 (7th Cir. 2013) (quoting Wilson, 501 U.S. at 304); see also Thomas v.
Illinois, 697 F.3d 612, 614-15 (7th Cir. 2012) (depending on severity, duration, nature of the risk
and susceptibility of the inmate, prison conditions may violate the Eighth Amendment if they
caused either physical, psychological, or probabilistic harm).
An inmate who is deprived of adequate nutrition, a basic human need, may be able to
sustain an Eighth Amendment claim. See Rhodes v. Chapman, 452 U.S. 337, 346 (1981); Farmer
v. Brennan, 511 U.S. 825, 837 (1970); James v. Milwaukee Cnty., 956 F.2d 696, 699 (7th
Cir.1992). But the denial of food is not a per se violation of the Eighth Amendment; instead, a
district court “must assess the amount and duration of the deprivation.” Reed v. McBride, 178
F.3d 849, 853 (7th Cir.1999).
4
Similarly, an inmate who is deprived of drinkable water may be able to sustain an Eighth
Amendment claim. See, e.g., Atkins v. City of Chicago, 631 F.3d 823, 830 (7th Cir. 2011)
(collecting cases). In Atkins, the inmate alleged that, after he swallowed an earring, he was
placed in a cell without food or drinking water for four days until he passed the earring. Id. at
829–30. The Seventh Circuit noted that such an allegation may state a claim, but that the
complaint indicated that the inmate had received other liquids during that time. Id. at 830–31.
Here, Plaintiff claims that Officer Dunne instructed Officer Samms and Officer Edwards
to confine Plaintiff to his cell and deprive him of food, water, exercise, and contact. Plaintiff
does not allege that the officers carried out these orders, however, or (if they did) describe the
extent of the alleged deprivations. Without this information, the Complaint fails to state a
plausible Eighth Amendment claim as to these individuals.
Accordingly, Count 9 shall be dismissed without prejudice for failure to state a claim
upon which relief may be granted.
Pending Motion
Plaintiff has filed a second Motion for Leave to Proceed in Forma Pauperis. That Motion
(Doc. 6) is DENIED as moot. An Order granting Plaintiff leave to proceed in forma pauperis
(Doc. 5) was entered on January 22, 2018.
Disposition
IT IS HEREBY ORDERED that COUNT 8 shall receive further review as to DUNNE.
IT IS FURTHER ORDERED that COUNT 9 is DISMISSED without prejudice for
failure to state a claim upon which relief may be granted. COUNT 9 is the only claim directed
against Defendants SAMMS and EDWARDS. Accordingly, Defendants SAMMS and
5
EDWARDS are DISMISSED from the action without prejudice. The Clerk of the Court is
DIRECTED to terminate these individuals as defendants in CM/ECF.
IT IS FURTHER ORDERED that, as to COUNT 8, the Clerk of Court shall prepare for
DUNNE: (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 Defendant’s place of employment as
identified by Plaintiff. If 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 Defendant, and the Court will require that
Defendant pay the full costs of formal service, to the extent authorized by the Federal Rules of
Civil Procedure.
If Defendant can no longer can be found at the work address provided by Plaintiff, the
employer shall furnish the Clerk with Defendant’s current work address, or, if not known,
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.
Defendant is 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 United States Magistrate Judge Wilkerson, pursuant to Local Rule 72.2(b)(2)
and 28 U.S.C. § 636(c), if all parties consent to such a referral.
6
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
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: February 16, 2018
___________________________
NANCY J. ROSENSTENGEL
United States District Judge
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?