United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
R. Leichty Judge, United States District Court
Derrell Robertson, a prisoner without a lawyer, filed a
complaint (ECF 1) against Robert E. Carter, Jr., and the
United States Government alleging that his mental health
needs are not being met in a constitutionally adequate manner
while being housed in administrative segregation at the
Westville Correctional Facility. He has also filed a motion
for a preliminary injunction. ECF 3. A prisoner may not bring
a civil action or appeal in forma pauperis if he
has, “on three or more prior occasions, while
incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was dismissed
on the grounds that it [was] frivolous, malicious, or fails
to state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g). This is commonly
known as the “three strikes” provision. A review
of Mr. Robertson's litigation history reveals that he has
accumulated three strikes:
(1) Robertson v. Spears, 1:15-CV-1405 (S.D. Ind.
filed September 3, 2015), dismissed December 4, 2015, for
failure to state a claim;
(2) Robertson v. Spitzer, 3:18-CV-609 (N.D. Ind.
filed August 7, 2018), dismissed October 17, 2018, pursuant
to 28 U.S.C. § 1915A because the amended complaint
sought money damages against a defendant who was immune from
such relief; and
(3) Robertson v. Sevier, 3:18-CV-637 (N.D. Ind.
filed August 14, 2018), dismissed August 24, 2018, for
failure to state a claim.
inmate who has struck out “can use the partial
prepayment option in §1915(b) only if in the future he
‘is under imminent danger of serious physical
injury.'” Abdul-Wadood v. Nathan, 91 F.3d
1023, 1025 (7th Cir. 1996) (quoting 28 U.S.C. §
1915(g)). To meet the imminent danger standard, the threat
complained of must be real and proximate. Ciarpaglini v.
Saini, 352 F.3d 328, 330 (7th Cir. 2003). Only
“genuine emergencies” qualify as a basis for
circumventing § 1915(g). Lewis v. Sullivan, 279
F.3d 526, 531 (7th Cir. 2002).
Mr. Robertson alleges that his mental health needs have been
neglected for the past eighteen months while he has been in
administrative segregation. He asserts that he does not
receive treatment even though he complains of constant
anxiety attacks, major depression, and hearing voices that
tell him to harm himself and others. A mental health worker
chats with him at the front of his cell occasionally while
other inmates listen, but that is the extent of the care he
receives. That same individual then documents that Mr.
Robertson refused care - an allegation that Mr. Robertson
denies. Giving Mr. Robertson the benefit of the inferences to
which he is entitled at this stage of the proceeding, these
allegations state a plausible claim that he is in imminent
danger of harming himself.
Mr. Robertson has alleged that he faces imminent danger, he
has been granted leave to proceed in forma pauperis
by separate order of the court. Mr. Robertson's
complaint, however, seeks both monetary compensation and
injunctive relief, but claims for monetary damages are not
genuine emergencies. Therefore, he may only proceed on a
claim for injunctive relief.
Robertson asks to be transferred to a “Snap unit”
for treatment, but “[t]he PLRA circumscribes the scope
of the court's authority to enter an injunction in the
corrections context. Where prison conditions are found to
violate federal rights, remedial injunctive relief must be
narrowly drawn, extend no further than necessary to correct
the violation of the Federal right, and use the least
intrusive means necessary to correct the violation of the
Federal right.” Westefer v. Neal, 682 F.3d 679
(7th Cir. 2012) (quotation marks, brackets, and citations
omitted). Therefore, injunctive relief - if granted - will be
limited to requiring the Westville Correctional Facility to
provide Mr. Robertson with mental health treatment that does
not violate the Constitution.
Robertson names multiple defendants in his complaint.
However, the proper defendant for his injunctive relief claim
is the Warden of the Westville Correctional Center in his
official capacity. The Warden is the person who has both the
authority and the responsibility to ensure that Mr. Robertson
receives constitutionally adequate mental health treatment.
these reasons, the court:
(1) GRANTS Jerome Derrell Robertson leave to proceed against
the Warden of the Westville Correctional Center in his
official capacity on an injunctive relief claim to provide
him with constitutionally adequate mental health care, as
required by the Eighth Amendment;
(2) DISMISSES all other claims;
(3) DISMISSES the Deputy Commissioner, Regional Director,
Executive Director of Classification, Heath Administrator
Livers, and ...