Kitterman v. Norton

• Court: U.S. District Court — Southern District of Illinois
• Writing for the Court: HERNDON, District Judge
• Decision Date: 09 March 2018
• Docket Number: Case No. 18-cv-00190-DRH
• Citation: Kitterman v. Norton, Case No. 18-cv-00190-DRH (S.D. Ill. Mar 09, 2018)
• Parties: SHANE ALLEN KITTERMAN, #B80577, Plaintiff, v. WILLIAM "BILL" NORTON and JEFFREY DENNISON, Defendants.

SHANE ALLEN KITTERMAN, #B80577, Plaintiff, v. WILLIAM "BILL" NORTON and JEFFREY DENNISON, Defendants.

Case No. 18-cv-00190-DRH

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

March 9, 2018

MEMORANDUM AND ORDER

HERNDON, District Judge:

Plaintiff Shane Kitterman, an inmate who is currently incarcerated at Shawnee Correctional Center ("Shawnee"), filed this civil rights action pursuant to 42 U.S.C. § 1983 against a Prisoner Review Board ("PRB") member (William "Bill" Norton) and Shawnee's warden (Jeffrey Dennison).¹ (Doc. 1). In the Complaint, Plaintiff alleges that he is scheduled for release on May 28, 2018. (Doc. 1, p. 1). He is required to serve a term of mandatory supervised release ("MSR") which begins on that date, and he objects to certain conditions of MSR.

In particular, Plaintiff challenges those conditions that arise under the Illinois Sex Offender Registration Act, 730 ILCS §§ 150/1 et seq. (Doc. 1, pp. 1-2). This includes the duty to locate suitable housing and to register as a sex offender. (Doc. 1, pp. 1-11). Plaintiff insists that his obligations under SORAexpired in 2006. Id. The related obligations thus amount to double jeopardy under the Fifth Amendment, cruel and unusual punishment under the Eighth Amendment, and a violation of due process and/or equal protection of the law under the Fourteenth Amendment. Id. In connection with these claims, Plaintiff seeks injunctive relief and monetary damages against the defendants. (Doc. 1, pp. 5, 7, 11).

The Complaint is now subject to preliminary review 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 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, 1026-27 (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

Plaintiff is currently serving sentences for failing to register as a sex offender in 2012, 2014, and 2015 in St. Clair County Case Nos. 12-CF-1204, 14-CF-1422, and 15-CF-373. See Bova v. U.S. Bank, N.A., 446 F. Supp. 2d 926, 930 n.2 (S.D. Ill. 2006) (a court may judicially notice public records available on government websites) (collecting cases). He is challenging these convictions in state and federal court. See Kitterman v. Garnett, No. 16-cv-1124-DRH (S.D. Ill. 2016) (Doc. 39) (staying federal habeas action pending outcome of state court proceedings). In the instant Complaint, Plaintiff alleges that he is scheduled to begin a term of MSR on or around May 28, 2018. (Doc. 1, p. 2). He filed this action to address several problems he anticipates as this deadline approaches. (Doc. 1, pp. 1-11).

First, Plaintiff challenges the conditions of his MSR, which are currently scheduled to take effect on May 28, 2018. (Doc. 1, pp. 1-5). William Norton met with Plaintiff to set these conditions on January 18, 2018, less than three weeks before he filed this action. (Doc. 1, p. 1). Norton relied upon information gathered by the Illinois Department of Corrections ("IDOC") from certain law enforcement agencies, circuit court clerks, state's attorneys, and the state police. (Doc. 1, p. 2). Based on this information, Norton determined that Plaintiff is required to comply with the Illinois Sex Offender Registration Act, 730 ILCS §§150/1 et seq. ("SORA"). Id. Under SORA, Plaintiff is allegedly required to locate suitable housing and to register as a sex offender. Id. Plaintiff objects to these conditions. Id.

Norton made this determination after Plaintiff produced "positive evidence" that he is not a "person required to register" under SORA in the State of Illinois. (Doc. 1, p. 2). Plaintiff explained that his obligations under SORA expired on January 10, 2006, pursuant to a fully negotiated plea agreement that he entered into with the State of Illinois 10 years earlier. (Doc. 1, pp. 2-4). On January 10, 1996, Plaintiff was convicted of a violation of 720 ILCS § 5/12-16(c)(1) (West 1992), for sexual acts perpetrated against a non-family member in St. Clair County Circuit Court Case No. 95-cv-750. (Doc. 1, p. 3). He was sentenced to 4 years of probation and released the same day. Id. Plaintiff's obligation to register allegedly began on his date of conviction and release (i.e., January 10, 1996) and expired 10 years later (i.e., January 10, 2006). Id. At his PRB hearing, Plaintiff submitted documents from the Illinois State Police that "memorialized the expiration date of the 10 year period as being '01-10-06.'" (Doc. 1, p. 2). Plaintiff claims that his status as a "person required to register" under SORA has since been extended on several occasions through the "unlawful actions of local State Prosecutors, in connivance with local Police Departments, while conspiring with the Illinois State Police (ISP)." (Doc. 1, pp. 2, 4). He seeks an order enjoining the defendants from imposing these conditions on his MSR, as well as monetarydamages for the violations of his rights under the Eighth and Fourteenth Amendments.

Second, Plaintiff fears that he will not be released on May 28, 2018, based on a common practice in Illinois known as the "turnaround policy."² Warden Dennison is allegedly responsible for assisting inmates in finding suitable housing prior to their release date. (Doc. 1, p. 6). However, Dennison "through his agent, Defendant Norton," allegedly declared that the IDOC and/or PRB have a policy of "turn[ing] those persons labeled as 'Sex Offenders' around at the door." Id. Instead of assisting inmates in locating suitable housing, Plaintiff alleges that Warden Dennison prevents convicted sex offenders from finding suitable housing. Id. He allegedly "pad[s]" inmate files with documentation of "purported efforts" to locate housing, when little or no effort is actually made to help inmates. Id. When inmates are unable to locate suitable housing, they are re-incarcerated instead. Id. Warden Dennison has also deemed all sex offenders ineligible for academic, drug, and substance abuse programs and other employment opportunities that allow them to save money and secure suitable housing. Id. Plaintiff seeks an Order enjoining the defendants from using the "turnaround policy" to prevent hisrelease on MSR and requiring the defendants to produce documentation of meaningful and effective efforts to assist sex offenders in locating housing. Id.

Finally, Plaintiff names both defendants in connection with his claim that any conditions imposed against him under SORA amount to double jeopardy under the Fifth Amendment. (Doc. 1, pp. 7, 11). Plaintiff has already been subject to the "duty to register" for a period of 10 years and has satisfied that obligation. (Doc. 1). However, he anticipates that the defendants and their agents "will impose upon him certain unlawful and unconstitutional conditions of MSR" that include restrictions on housing with his wife and children if they live near a park, school, or similar location. (Doc. 1, pp. 7, 11). Plaintiff seeks to enjoin the defendants from imposing any condition of MSR that denies him the benefit of his 1996 written plea agreement or subjects him to obligations under SORA. (Doc. 1, p. 11).

Discussion

To facilitate the orderly management of future proceedings in this case, and in accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the Court deems it appropriate to organize the claims in Plaintiff's pro se Complaint (Doc. 1) into the following two counts:

Count 1 - The conditions of Plaintiff's MSR, which include restrictions that are applicable to convicted sex offenders under SORA, violate Plaintiff's rights under the Fifth, Eighth, and/or Fourteenth Amendments.

Count 2 - The "turnaround policy," which is a practice frequently used by the PRB/IDOC to re-incarcerate sex offenders who are approved for release but unable to locate suitable housing,violates Plaintiff's rights under the Eighth and/or Fourteenth Amendments.

The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The designations do not constitute an opinion regarding the merits of these claims.

Section 1983 or Habeas

Plaintiff cannot challenge the conditions of his MSR in an action brought pursuant to 42 U.S.C. § 1983. A petition for a writ of habeas corpus is the proper route "[i]f the prisoner is seeking what can fairly be described as a quantum change in the level of custody—whether outright freedom, or freedom subject to the limited reporting and financial constraints of bond or parole or probation." Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991). On the other hand, the prisoner's remedy is civil rights law, if he "is seeking a different program or location or environment." Id.; see also Pischke v. Litscher, 178 F.3d 497, 500 (7th Cir. 1999). Plaintif...