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Kitterman v. Dunne

United States District Court, S.D. Illinois

February 16, 2018

SHANE A. KITTERMAN, #B-80577 Plaintiff,
v.
OFFICER DUNNE, OFFICER SAMMS, and OFFICER EDWARDS, Defendants.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL, UNITED STATES 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 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

         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.

         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 ...

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