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Kitterman v. Baricevic

United States District Court, S.D. Illinois

October 31, 2016

SHANE A. KITTERMAN, # B80577, Plaintiff,
v.
JOHN BARICEVIC and BRENDAN KELLY, Defendants.

          MEMORANDUM AND ORDER

          MICHAEL J. REAGAN U.S. Chief District Judge.

         Plaintiff Shane Kitterman is currently incarcerated at Big Muddy River Correctional Center (“Big Muddy”) following three convictions for failing to register as a sex offender in St. Clair County Circuit Court Case Nos. 12-CF-1204, 14-CF-1422, and 15-CF-373.[1] In the instant “Complaint for Specific Performance of a Contract” that he filed pursuant to 42 U.S.C. § 1983, Kitterman insists that he was not obligated to register as a sex offender in 2012, 2014, or 2015 (Doc. 1). His obligation, which stemmed from a 1995 charge of aggravated criminal sexual abuse and resulted in a 1996 negotiated plea agreement, ended long before 2012 (Doc. 1, pp. 2-4). However, Kitterman was unable to present evidence of his 1996 plea agreement in the three criminal matters because the State's Attorney, Brendan Kelly, and the Chief Judge of the St. Clair County Circuit Court, Honorable John Baricevic, barred all evidence of the agreement from those proceedings (id. at 3-4).

         Kitterman now asserts claims against Attorney Kelly and Chief Judge Baricevic for breach of contract and due process violations arising from the exclusion of this evidence from Kitterman's criminal proceedings (id. at 2-4). Kitterman requests monetary damages against both defendants (id. at 4). He also seeks injunctive relief, in the form of “specific performance” of the 1996 plea agreement (id.).

         Merits Review Under 28 U.S.C. § 1915A

         This case is now before the Court for a preliminary review of the Complaint (Doc. 1) pursuant to 28 U.S.C. § 1915A. Under § 1915A, the Court is required to promptly screen prisoner complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is required to dismiss any portion of the Complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money damages from a defendant who by law is immune from such relief. 28 U.S.C. § 1915A(b).

         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). 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. Conversely, a complaint is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiff's claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts “should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements.” Id. At the same time, however, the factual allegations of a pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009). After carefully considering the allegations, the Court finds that the Complaint does not survive review under § 1915A and shall be dismissed.

         The Complaint

         On or around July 17, 1995, Kitterman was allegedly arrested and charged with criminal sexual abuse in the City of Belleville, Illinois (Doc. 1, pp. 2, 7). He entered into a negotiated plea agreement with the State's Attorneys, Robert Haida and Steve Sallerson, on January 10, 1996. In exchange for a reduction in the offense, Kitterman agreed to “Intensive Probation” until the period of probation expired or the period of probation was terminated (id. at 2, 10-12). The parties agreed that early unsuccessful termination of the probation period “may” subject Kitterman to incarceration in an Illinois prison for an indefinite period of time (id. at 2). The parties also agreed that the Illinois Sex Offender Registration Act (“SORA”), 730 ILCS 150/1, et seq., controlled the agreement (id. at 3). Between January 10, 1996 and March 6, 1997, Kitterman alleges that he “demonstrated substantial performance of the terms of the contract” (id.).

         On March 6, 1997, Kitterman appeared in the St. Clair County Circuit Court with his “agent, ” Ethan Skaggs. At a hearing before Honorable Jan Fiss, the parties agreed that Kitterman “would be relieved of the duty to comply with the direction of a probation officer and the duties created thereby” (id.). Kitterman claims that he was also relieved of the duty to comply with SORA (id.).

         Even so, in 2012, 2014, and 2015, the State's Attorney, Brendan Kelly, “attempted to enforce the terms of the contract” by placing Kitterman “under unlawful restraint” for “matters alleged to relate to the 1996 contract” (id. at 3-4). Kitterman claims that Attorney Kelly should have known at the time that Kitterman was under no obligation to comply with SORA. He nevertheless conspired with Chief Judge Baricevic to exclude evidence of the 1996 plea agreement from Kitterman's criminal proceedings (id.). In order to “conceal his unlawful conduct and prevent the discovery of the breach of contract, Defendant Kelly [allegedly] employed . . . Defendant Baricevic, pursuant to his authority as a Chief Judge, to legally (sic) confine the Plaintiff to an Illinois Prison for nine (9) years” (id. at 4). This conduct amounted to a breach of contract and violation of Kitterman's procedural and substantive due process rights (id.).

         Discussion

         Kitterman brings a claim for breach of contract (Count 1) and for procedural and substantive due process violations (Count 2) against the defendants. Neither claim passes muster. Accordingly, Counts 1 and 2 shall be dismissed.

         The contract claim (Count 1) clearly predominates in this action. Kitterman entitles his pleading “Complaint for Specific Performance of a Contract” (Doc. 1, p. 1). He refers to the 1996 plea agreement as a “contract, ” alleges that the defendants are bound by its terms, and seeks “specific performance” of it.

         Breach of contract claims arise under state law, not federal law. The Seventh Circuit has long held that, even where a unit of state or local government has breached a contract, such a breach does not give rise to a federal constitutional claim. Taake v. County of Monroe, 530 F.3d 538, 540-42 (7th Cir. 2008); Garcia v. Kankakee Cnty Hous. Auth., 279 F.3d 532, 535 (7th Cir. 2002); Sudeikis v. Chicago Transit Auth.,774 F.2d 766, 770 (7th Cir. 1985). Because contract law is a creature of state law, an action focusing only on a claim for ...


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