The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JEROME DERRELL ROBERTSON,
Plaintiff,
v. CAUSE NO. 3:19CV910-PPS/MGG
CAPTAIN SMILEY, et al.,
Defendants.
OPINION AND ORDER
Jerome Derrell Robertson, a prisoner without a lawyer, filed a complaint against
three correctional officers at the Westville Control Unit.1 He also seeks leave to proceed
in forma pauperis. However, Robertson is barred from proceeding in forma pauperis
pursuant to 28 U.S.C. § 1915(g). This is commonly known as the “Three Strikes Rule,”
and Robertson has three strikes.2 An 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). In
order to meet the imminent danger standard, the threat complained of must be real and
1 On the first page of his complaint form, Robertson states that he is suing seven (7) defendants,
but he only lists three (3)—Captain Smiley, Lt. Pickens, and Sgt. Reed. It is not clear who Robertson
intends the remaining defendants to be, as he names a total of twelve (12) individuals in the facts section
of his complaint.
2 (1) Robertson v. Spears, 1:15CV1405 (S.D. Ind. filed September 3, 2015), dismissed December 4,
2015, for failure to state a claim;
(2) Robertson v. Spitzer, 3:18CV609 (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, 3:18CV637 (N.D. Ind. filed August 14, 2018), dismissed August 24, 2018,
for failure to state a claim.
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).
In this case, Robertson alleges that Captain Smiley, Lt. Pickens, and Sgt. Reed
failed to protect him from an attack by another inmate. He claims he advised the
officers of threats he had been receiving, but they ignored his pleas for help. On June 10,
2019, Offender Smith—who is known to have Hepatitis C—assaulted him with bodily
fluids causing injury to his left eye. He states that the officers refused to move him to a
different unit after the attack. However, Robertson admits that he contacted internal
affairs on June 11th, and he was moved the next day. ECF 1 at 9. These allegations do not
plausibly allege that Robertson is now in imminent danger of serious physical injury.
He also describes the medical treatment he received. Robertson requested a
Hepatitis C test on the day of the incident, but he was told by a nurse that the test could
only be performed after a three-month waiting period. Robertson alleges he told the
medical staff on June 28th that he was “distressed from the fear” of the possibility of
catching the disease. ECF 1 at 6; ECF 1-2 at 12. However, Robertson does not allege that
the test was never performed after the requisite waiting period expired or that he was
diagnosed with Hepatitis C and is failing to receive treatment for it. Robertson’s
feelings of distress do not qualify as a basis for circumventing the Three Strikes Rule.
Finally, Robertson complains about his vision. Following the initial triage where
Robertson’s eye was flushed out with ophthalmic solution, it was determined that he
likely needed glasses unrelated to the incident, so he was referred to the eye clinic. ECF
1 at 4–6. The results of an eye exam indicated he did not qualify for a visit with an
optometrist,3 so he was advised to purchase reading glasses from the commissary
instead. Id. at 5–6. Although a slight decrease in peripheral vision was noted in August,
he was again advised to purchase glasses from the commissary after the matter had
been investigated. Id. at 7–8. Robertson claims that his vision is worsening because he is
too indigent to buy the recommended glasses. Id. at 8. He requests “$750,000 for injury
and damages.” Id. at 10.
Claims for monetary damages are not genuine emergencies. Robertson is an
experienced litigator who knows how to seek both permanent and preliminary
injunctive relief,4 yet he has not done so here. Because Robertson’s complaint seeks only
monetary damages—and he ties those claims regarding his vision to an inability to
purchase reading glasses from the commissary—I find that he has not plausibly alleged
he is in imminent danger of serious physical injury.
Nonetheless, Robertson filed this complaint without paying the filing fee. He
seeks leave to proceed in forma pauperis even though he knew he was struck out:
1. On December 17, 2018, he was told he had struck out and could not
proceed in forma pauperis unless he was in imminent danger of serious
physical injury. Robertson v. Nevels, 3:18CV1008 (N.D. Ind. filed December
13, 2018), ECF 3.
3 Staff from the eye clinic noted that his overall vision was 20/20, while each separate eye tested
at 20/30. ECF 1-2 at 12.
4 See e.g. Robertson v. Warden, 3:19CV938 (N.D. Ind. filed Oct. 21, 2019), ECF 1 & 3; Robertson v.
Carter, 3:19CV147 (N.D. Ind. filed March 4, 2019), ECF 1, 6, & 8; Robertson v. Warden, 3:19CV023 (N.D. Ind.
filed Jan. 10, 2019), ECF 1; Robertson v. Warden, 3:18CV814 (N.D. Ind. filed Oct. 3, 2018), ECF 1; Robertson v.
Sevier, 3:18CV637 (N.D. Ind. filed Aug. 14, 2018), ECF 1 & 3.
2. On January 14, 2019, he was told he had struck out and could not
proceed in forma pauperis unless he was in imminent danger of serious
physical injury. Robertson v. Sevier, 3:19CV023 (N.D. Ind. filed Jan. 10,
2019), ECF 2.
3. On May 9, 2019, he was told he had struck out and could not proceed in
forma pauperis unless he was in imminent danger of serious physical
injury. Robertson v. Carter, 3:19CV147 (N.D. Ind. filed March 4, 2019), ECF
10.
As such, prior to filing this lawsuit, Robertson had been told three times he has struck
out and cannot proceed in forma pauperis unless he is in imminent danger of serious
physical injury.5 He knows he must pre-pay the $400 filing fee unless he files a
complaint clearly alleging he is in imminent danger of serious physical injury.
The Seventh Circuit requires that litigants be restricted when they attempt to
“bamboozle” the court by seeking to proceed in forma pauperis after they have been
informed that they are barred from doing so.
Litigants to whom § 1915(g) applies take heed! An effort to
bamboozle the court by seeking permission to proceed in forma pauperis
after a federal judge has held that § 1915(g) applies to a particular litigant
will lead to immediate termination of the suit. Moreover, the fee remains
due, and we held in Newlin v. Helman, 123 F.3d 429, 436-37 (7th Cir. 1997),
that unpaid docket fees incurred by litigants subject to § 1915(g) lead
straight to an order forbidding further litigation. Sloan’s appeal is
dismissed for failure to pay the appellate filing and docket fees. Until
Sloan has paid in full all outstanding fees and sanctions in all civil actions
he has filed, the clerks of all courts in this circuit will return unfiled all
papers he tenders. This order does not apply to criminal cases or petitions
challenging the terms of his confinement, and may be reexamined in two
years under the approach of Newlin and Support Systems International, Inc.
v. Mack, 45 F.3d 185 (7th Cir. 1995).
5 Since filing this lawsuit, Robertson has been restricted in yet another case. See Robertson v. West,
3:19CV1004 (N.D. Ind. filed Nov. 4, 2019), ECF 3.
Sloan v. Lesza, 181 F.3d 857, 859 (7th Cir. 1999).
So too, this case will be dismissed, the filing fee assessed, and Robertson
restricted until he has paid in full all outstanding filing fees and sanctions imposed by
any federal court. The restriction imposed by this order does not restrict him from filing
a notice of appeal nor “impede him from making any filings necessary to protect him
from imprisonment or other confinement, but . . . [it does] not let him file any paper in
any other suit . . . until he pays the money he owes.” Support Sys. Int’l v. Mack, 45 F.3d
185, 186 (7th Cir. 1995). Neither does it restrict him from litigating any of his other three
pending civil rights lawsuits in this court including the one where he has clearly alleged
that he is in imminent danger of serious physical injury.
ACCORDINGLY, the court:
(1) DISMISSES this case WITHOUT PREJUDICE;
(2) DENIES Jerome Derrell Robertson leave to proceed in forma pauperis (ECF
2);
(3) ORDERS the plaintiff, Jerome Derrell Robertson, IDOC # 894086, to pay
(and the facility having custody of him to automatically remit) to the clerk of this court
20 percent of the money he receives for each calendar month during which he receives
$10.00 or more, until the $400.00 filing fee is paid in full;
(4) DIRECTS the clerk of court to create a ledger for receipt of these funds;
(5) DIRECTS the clerk of court to return, unfiled, any papers filed by or on behalf
of Jerome Derrell Robertson in any cases except:
3:18CV522-DRL/MGG,
3:18CV586-DRL/MGG,
3:19CV938-DRL/MGG
(except for a notice of appeal or unless filed in a criminal or habeas corpus proceeding)
until he has paid in full all outstanding fees and sanctions in all civil actions in any
federal court;
(6) DIRECTS the clerk to note on the docket of Robertson v. West, 3:19CV1004, any
attempted filings in violation of this order; and
(7) DIRECTS the clerk to ensure that a copy of this order is mailed to each facility
where the plaintiff is housed until the filing fee has been paid in full.
SO ORDERED on November 19, 2019.
/s/ Philip P. Simon
JUDGE
UNITED STATES DISTRICT COURT