United States District Court, S.D. Illinois
SHANE A. KITTERMAN, # B80577, Plaintiff,
JOHN BARICEVIC and BRENDAN KELLY, Defendants.
MEMORANDUM AND ORDER
MICHAEL J. REAGAN U.S. Chief District Judge.
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. 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).
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
Review Under 28 U.S.C. § 1915A
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).
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.
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”
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.).
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.).
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.
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.
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 ...