Kitterman v. Dalby et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHANE A. KITTERMAN,
Plaintiff,
v.
AMY DALBY, JASON ROBINSON,
JOHN BARWICK, WARDEN JEFFREY
WEHKING, DR. WHEALON, and
JOHN DOE DOCTOR,
Defendants.
Case No. 25-cv-1827-NJR
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Plaintiff Shane Kitterman, an inmate of the Illinois Department of Corrections who
is currently incarcerated at Pinckneyville Correctional Center, brought this action in state
court for deprivations of their constitutional rights while incarcerated at Pinckneyville
and Centralia Correctional Centers. 1 Defendant Amy Dalby removed the case to federal
court pursuant to 28 U.S.C. §§ 1331, 1441, and 1446 on September 24, 2025.
Motion to Remand
Kitterman seeks to remand this action (Doc. 10) on the basis that Dalby’s removal
was untimely. Under 28 U.S.C. § 1441(a), “any civil action brought in a State court of
which the district courts of the United States have original jurisdiction, may be removed
1 Kitterman alleges that they were born a male but suffer from gender identity disorder and
identifies as a transgender female (Doc. 1-2, p. 31). Although Kitterman has not identified the
pronouns that they prefer, the Court will use “they/them” until Kitterman informs the Court of
their preferred pronouns.
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by the defendant or the defendants, to the district court of the United States for the district
and division embracing where such action is pending.”
A defendant has 30 days from receipt of the complaint to file a notice of removal.
28 U.S.C. § 1446(b)(1). Valid removal requires the consent of all defendants, unless they
were not properly served at the time of removal. 28 U.S.C. § 1446(b)(2)(A). See also Phoenix
Container, L.P. v. Sokoloff, 235 F. 3d 352, 353 (7th Cir. 2000) (noting that joining in the notice
is “an essential step”). If the defendant failed to follow the proper steps in removing a
civil suit, “[a] plaintiff has a right to remand.” Matter of Cont’l Cas. Co., 29 F. 3d 292, 294
(7th Cir. 1994) (discussing non-jurisdictional objections to removal).
Kitterman argues that Dalby’s notice of removal was untimely because the
complaint was served by the Sheriff of Clinton County on August 22, 2025. The attached
summons notes that the summons was received by the Clinton County Sheriff on August
22, 2025, but it was not served on Dalby until August 25, 2025 (Doc. 1-2, pp. 104-105).
Because Dalby did not receive notice of the complaint until August 25, 2025, her notice of
removal, filed September 24, 2025, was timely. Kitterman’s motion to remand (Doc. 10) is
DENIED.
The Complaint
Pursuant to 28 U.S.C. § 1915A, the Court is required to screen prisoner complaints
to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a). Any portion of a 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
must be dismissed. 28 U.S.C. § 1915A(b).
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Kitterman transferred to Centralia Correctional Center in March 2024. Before
transferring to Centralia, Kitterman was diagnosed with Hepatitis C and asthma (Doc. 1-
2, p. 4). During intake at Centralia, Kitterman informed officials that they identified as a
transgender female although they had not yet been formally diagnosed (Id.). They also
stated that they previously tested positive for Hepatitis C and needed to be re-tested and
obtain treatment for the condition (Id.). Kitterman received a second test while at
Centralia and again tested positive for Hepatitis C (Id.). But Kitterman alleges that after
meeting with Amy Dalby about a possible referral to the University of Illinois – Chicago
for treatment, Dalby refused them treatment (Id. at pp. 5-6). She refused to monitor or
treat their condition, in part because they were transgender.
Kitterman submitted numerous grievances about their inability to obtain medical
care for their condition, but Warden Wehking and Jason Robinson refused to respond to
the grievances (Doc. 1-2, p. 7). Kitterman alleges that they filed at least 60 grievances
noting their worsening condition. They informed Wehking and Robinson that they
experienced loss of appetite, fatigue, nausea, vomiting, stomach pain, and yellowing of
their skin and eyes (Id.). They also submitted numerous request slips to the medical unit
and Dr. Whealon, informing Whealon of their condition (Id. at p. 8). They never received
treatment or further monitoring (Id. at pp. 8-13).
In April 2025, Kitterman requested an HIV test after they were assaulted, and
Dr. Whealon noted that their numbers still indicated that they had Hepatitis C. But
Whealon 	refused 	to 	treat 	or 	further 	test 	Kitterman 	(Id.). 	Kitterman 	also 	started
experiencing what they believe is end-stage liver disease (Id.). They informed Whealon
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that they suffered from dark tea colored urine, fatigue, swelling in the stomach, light
colored stool, and constant abdominal pain (Id.). Despite their complaints, they received
no further treatment (Id. at p. 14). In response to their continued complaints, Dr. Whealon
discontinued their Ensure, despite the drink being the only source of vitamins and
protein that they could consume without vomiting (Id. at p. 15). Kitterman’s continued
complaints also led to Wehking and Robinson transferring them to Pinckneyville, despite
there being no penological purpose for the transfer (Id.). They allege that Wehking and
Robinson specifically threatened to transfer them to Pinckneyville if they continued to
complain about their medical care, and actually transferred Kitterman after they filed
additional grievances (Id. at p. 20) Kitterman also alleges that Pinckneyville is known as
a harsher facility (Id.). Prior to their transfer, Dr. Whealon discontinued all of their
medications and confiscated their asthma inhaler (Id. at p. 15).
On June 18, 2025, Kitterman transferred to Pinckneyville (Doc. 1-2, p. 16). They
were told upon arrival that they would not receive care and they better not complain (Id.
at p. 20). After their transfer, Kitterman submitted numerous medical requests to John
Doe Doctor and Warden John Barwick requesting the return of their asthma inhaler, as
well as their medications and treatment for various conditions, including Hepatitis C (Id.
at p. 16). John Doe Doctor relayed through nurses passing out medications in the housing
units that he would not provide care or schedule exams for Kitterman due to Kitterman’s
previous complaints (Id. at p. 21). Kitterman alleges that they suffer from asthma,
heartburn, and a sprained wrist (Id. at pp. 16-17). Kitterman also alleges that in April 2025
they were diagnosed with a lipoma/boil that needed removed, but they have yet to be
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scheduled for the procedure (Id. at p. 16). Their requests for care to John Doe Doctor and
Warden Barwick have gone unanswered (Id. at p. 17). Kitterman alleges that upon arrival
at Pinckneyville, Barwick threatened them not to file any additional grievances (Id.).
Discussion
Based on the allegations in the Complaint, the Court designates the following
counts:
Count 1: 	Eighth Amendment deliberate indifference claim against
Amy 	Dalby, 	Jason 	Robinson, 	Jeffrey 	Wehking, 	Dr.
Whealon, John Barwick, and John Doe Doctor for refusing
to treat Kitterman’s Hepatitis C and other conditions.
Count 2: 	First Amendment retaliation claim against Jason Robinson,
Jeffrey Wehking, Dr. Whealon, John Barwick, and John Doe
Doctor for refusing Kitterman medical care and transferring
Kitterman 	to 	Pinckneyville 	in 	retaliation 	for 	filing
grievances at Centralia.
Count 3: 	Illinois 	state 	law 	claim 	for 	intentional 	infliction 	of
emotional distress against Amy Dalby, Jason Robinson,
Jeffrey Wehking, Dr. Whealon, John Barwick, and John Doe
Doctor for refusing to provide Kitterman with medical care.
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. Any other claim that is
mentioned in the Complaint but not addressed in this Order should be considered
dismissed without prejudice as inadequately pled under the Twombly pleading
standard. 2
2 This includes any claim pursuant to the Americans with Disabilities Act (“ADA”). Kitterman
alleges that their inadequate medical screening and care for their Hepatitis C violated the ADA,
but they fail to allege that they were discriminated against based on a disability. Wis. Cmty. Servs.,
Inc. v. City of Milwaukee, 465 F.3d 737, 753 (7th Cir. 2006). See also Bell Atlantic Corp. v. Twombly,
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At this stage, Kitterman states a viable claim for deliberate indifference to his
medical needs against Amy Dalby, Jason Robinson, Jeffrey Wehking, Dr, Whealon, John
Barwick, and John Doe Doctor in Count 1. He also states a viable retaliation claim against
Jason Robinson, Jeffrey Wehking, Dr. Whealon, John Barwick, and John Doe Doctor in
Count 2. Hawkins v. Mitchell, 756 F.3d 983, 996 (7th Cir. 2014). Finally, Kitterman alleges
a viable intentional infliction of emotional distress claim under Illinois state law. McGreal
v. Vill. of Orland Park, 850 F.3d 308, 314 (7th Cir. 2017).
To the extent that Kitterman seeks injunctive relief and/or a temporary restraining
order for medical care at Pinckneyville Correctional Center, Kitterman is no longer in
IDOC custody. Per the Illinois Department of Corrections’ website, Kitterman paroled
from Pinckneyville on November 3, 2025. See IDOC’s Individual in Custody Search,
https://idoc.illinois.gov/offender/inmatesearch.html (last visited Nov. 18, 2025). Thus,
Kitterman’s request for injunctive relief (Doc. 1-2, pp. 51-55) is DENIED as moot.
Disposition
For the reasons stated above, Count 1 shall proceed against Amy Dalby, Jason
Robinson, Jeffrey Wehking, Dr. Whealon, John Barwick, and John Doe Doctor. Count 2
shall proceed against Jason Robinson, Jeffrey Wehking, Dr. Whealon, John Barwick, and
John Doe Doctor. Count 3 shall proceed against Amy Dalby, Jason Robinson, Jeffrey
Wehking, Dr. Whealon, John Barwick, and John Doe Doctor. The Court also adds John
550 U.S. 544, 570 (2007) (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”).
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Barwick, in his official capacity, to respond to discovery aimed at identifying the
unknown doctor at Pinckneyville.
The Clerk of Court shall prepare for Amy Dalby, Jason Robinson, Jeffrey Wehking,
Dr. Whealon, and John Barwick (official and individual capacity): (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 each defendant’s place of employment as identified by
Kitterman. If a 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 that defendant, and the Court will require
that defendant to pay the full costs of formal service, to the extent authorized by the
Federal Rules of Civil Procedure.
If a defendant can no longer be found at the work address provided by Kitterman,
the employer shall furnish the Clerk with the 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.
Defendants are ORDERED to timely file an appropriate responsive pleading to
the Complaint and shall not waive filing a reply pursuant to 42 U.S.C. Section 1997e(g).
Pursuant to Administrative Order No. 244, Defendants need only respond to the issues
stated in this Merit Review Order.
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Because Kitterman’s claims involve their medical care, the Clerk of Court is
DIRECTED to enter the Court’s standard HIPAA Qualified Protective Order.
Finally, Kitterman was previously advised that they were under a continuing
obligation to keep the Clerk of Court and each opposing party informed of any change in
their address; the Court will not independently investigate their whereabouts (Doc. 5).
As of this date, Kitterman has not updated their address. Kitterman is DIRECTED to
update their address by December 4, 2025. Failure to comply with this order will result
in dismissal of this action for want of prosecution. See F ED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: November 20, 2025
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge
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Notice to Plaintiff
The Court will take the necessary steps to notify the appropriate defendants of
your lawsuit and serve them with a copy of your Complaint. After service has been
achieved, the defendants will enter their appearance and file an Answer to your
Complaint. It will likely take at least 60 days from the date of this Order to receive the
defendants’ Answer, but it is entirely possible that it will take 90 days or more. When all
the defendants have filed Answers, the Court will enter a Scheduling Order containing
important information on deadlines, discovery, and procedures. Plaintiff is advised to
wait until counsel has appeared for the defendants before filing any motions, to give the
defendants notice and an opportunity to respond to those motions. Motions filed before
defendants’ counsel has filed an appearance will generally be denied as premature.
Plaintiff need not submit any evidence to the Court at this time, unless specifically
directed to do so.
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