The opinion of the court was delivered by: MORAN
Anthony Jones, who sometimes refers to himself as Tonya or Tasha Star Jones, is an Illinois inmate with a penchant for lingerie and litigation. The former has gotten him into trouble with a few of his fellow prisoners. The latter has been troublesome to the courts. In this opinion we review seventeen of the more than one hundred suits that Jones has filed in federal court over the last eight years in order to determine if they have sufficient merit to warrant filing without prepayment of the filing fee. Finding that Jones has stepped over the line of reasonable conduct in his litigation activities, we also consider what sanctions are appropriate to curb abuse of the judicial process by a nearly penniless inmate.
Each of the seventeen complaints before the court seeks relief under 42 U.S.C. § 1983. Each also is presented for filing in forma pauperis under 28 U.S.C. § 1915(a). We consolidate the actions for the sole purpose of ruling on the motions for leave to proceed in forma pauperis under § 1915(a). That statute allows a plaintiff to commence suit without prepayment of fees or costs if, by affidavit, plaintiff can show that he does not have the necessary funds. The purpose of the statute is "to ensure that indigent litigants have meaningful access to the courts." Neitzke v. Williams, 490 U.S. 319, 324, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989). Not all of Jones' motions for leave to file in forma pauperis are on the form that this Court requires its litigants to use. See Northern District of Illinois General Rule 11(b). Nonetheless, the motions he has tendered on the required form clearly demonstrate a lack of financial resources to pay even a part of the filing fee. The financial affidavit accompanying his most recent complaint indicates he has a current balance of $ 14 in his prison trust account. Jones, who generally receives less than $ 10 a month from the prison and highly sporadic small gifts from individuals outside the prison, rarely accumulates any significant savings. Truly a pauper, Jones is entitled to proceed with his cases as an indigent.
Congress, however, did not intend that indigents have wholly unobstructed access to the courts. As a price for waiver of the fees and costs of a lawsuit, a party seeking leave to proceed in forma pauperis must also surmount a substantive hurdle. Under 28 U.S.C. § 1915(d), the court may dismiss the claim of an indigent litigant if "satisfied that the action is frivolous or malicious." In this Circuit, the merits of the suit are also subject to review under § 1915(a). See Wartman v. Branch 7, Civil Division, County Court, 510 F.2d 130, 132 (7th Cir. 1975). Thus, if the court finds the complaint to be frivolous, it may both deny plaintiff's motion for leave to file in forma pauperis and dismiss the case. Smith-Bey v. Hospital Administrator, 841 F.2d 751, 757 (7th Cir. 1988). A complaint is frivolous within the meaning of 28 U.S.C. § 1915(d) if "it lacks an arguable basis either in law or fact." Neitzke v. Williams, 490 U.S. at 325. Eight of the complaints before us are facially without any arguable legal merit. We dismiss each of them as frivolous.
In this case, Jones sues for the right of access to bras and panties. He alleges female prisoners in Illinois have the right to purchase eye shadow, eyeliner, feminine hygiene deodorant, bleaching creme, hair rollers, lipstick, mascara, nail polish, rouge, panties, bras, and slips. Jones is upset because he does not have the same rights as female inmates. The warden at the Stateville Correctional Center refuses to authorize the purchase of these items for the male prisoners under his control. Jones contends this violates his rights under the First and Fourteenth Amendments. He holds the founding fathers of this country up as his role models because they wore wigs and makeup.
As will become more apparent in our discussion of the cases before us, Jones has several themes which run repeatedly through his many lawsuits. One of those themes is Jones' asserted constitutional right of access to women's makeup and apparel. This court has once before rejected as frivolous Jones' claim that he had a constitutional right to purchase and wear women's panties and lipstick. Jones v. Edgar, 92 C 2581 (N.D.Ill. June 18, 1992). This court, however, is not the only one to consider Jones' claim that he has a right to purchase female attire. Judge Michael M. Mihm of the Central District of Illinois fully analyzed the merits of such a claim in a similar suit that Jones brought against officials at the Pontiac Correctional Center. Jones v. Gramley, 815 F. Supp. 276 (C.D.Ill. 1993).
The court need not elaborate any further on its earlier decision or Judge Mihm's thorough opinion. Neither the Equal Protection Clause nor the First Amendment arguably accord Jones the right of access to women's clothing while confined in a state prison. The complaint in 92 C 7404 is dismissed as frivolous. Plaintiff's motion to amend his complaint in 93 C 69, which again asserts the right to wear women's panties, is also denied.
Another theme that runs through many of Jones' complaints is his need for protection from other inmates. In this action, Jones sues former Stateville Correctional Center Warden Salvador Godinez. He charges defendant with failing to provide him adequate protection from physical abuse at Stateville, a maximum security facility housing aggressive inmates. Jones avers that he faces daily sexual harassment from fellow prisoners because he is an effeminate homosexual or, as he refers to himself, "drag queen." He maintains defendant has not adequately addressed Jones' security problem because he has allowed Jones to be placed in cells with aggressive and/or "straight" males rather than other "effeminate" homosexuals.
Jones has already litigated and lost a similar claim against Godinez. Jones v. Godinez, 92 C 8026, 1995 U.S. Dist. LEXIS 1728 (N.D.Ill. Feb 13, 1995), aff'd without published decision, 65 F.3d 170 (7th Cir. 1995). In 92 C 8026, Jones sued Godinez for failing to protect him from allegedly being raped by a gang member on July 9, 1992. He contended that the decision to put him in a cell with a gang member constituted deliberate indifference to his safety because defendant should have known that all gang members could be a threat to the safety of an effeminate homosexual drag queen. The court granted summary judgment for Godinez on several grounds. First, Jones failed to show that Godinez had any personal involvement in the decision to place him in the cell where the rape took place. Id. at *7. The court also rejected Jones' argument that Godinez, as warden, should have known of the danger to Jones simply because Stateville is notorious for gangbangers sexually assaulting drag queens and effeminate homosexuals. This argument failed because Jones did not present any evidence to show that Godinez was aware of the particular danger Jones faced. Id. at *8. Jones accepted his cell assignment with nary a peep to anyone. Furthermore, he admitted that he had never complained to Godinez about the dangers he allegedly faced from his cell mate or any other purported gang member. Finally, the court rejected Jones' theory that Godinez was liable for failure to establish a policy to cope with the general danger of putting homosexuals in cells with gang members. Id. at *9. Evidence showed that Jones was placed in a special unit used to evaluate the requirements of inmates who had special security needs. Jones could thus prevail only if Godinez had a constitutional duty to train officers never to place gang members in cells with homosexuals. The court declined to impose such a duty on Godinez for "surely not every gang member poses a threat to homosexuals, and in a maximum security prison there are probably many nonmembers who do pose such a threat." Id.
The doctrine of res judicata, or claim preclusion, bars a plaintiff from suing the same defendant in a second suit involving the same cause of action when a court of competent jurisdiction has entered a judgment on the merits in the earlier action. See Brzostowski v. Laidlaw Waste Systems, Inc., 49 F.3d 337, 338 (7th Cir. 1995); Church of the New Song v. Establishment of Religion, 620 F.2d 648, 652 (7th Cir. 1980), cert. denied, 450 U.S. 929, 101 S. Ct. 1387, 67 L. Ed. 2d 361 (1981). All the necessary elements required for claim preclusion are present here. Jones in this case sues the exact same party that he sued in 92 C 8026. This court dismissed that action on the merits. Finally, the claim asserted here arises out of the same core of operative facts put in issue in 92 C 8026. Although Jones does not allege a rape here, the rape at issue in the earlier case had already taken place when Jones tendered this action to the court for filing. Moreover, the broad allegations that Godinez has not provided Jones with adequate protection due to his failure to segregate effeminate homosexuals from aggressive "straight" males was fully addressed and rejected in 92 C 8026. Having lost once, Jones cannot relitigate his claim against Godinez again in this case. Accordingly, the court denies Jones' motion for leave to file this action in forma pauperis.
In 93 C 5474, Jones again charges defendants with failing to protect him from inmate assault. He maintains officers at the Joliet Correctional Center put an inmate with a history of sexual assaults into his disciplinary segregation cell even though they knew Jones was a drag queen for whom the risk of assault is a serious problem of substantial significance.
As evidenced by 92 C 5381, Jones has a nasty habit of filing multiple suits raising the same claims against the same defendants. See also Jones v. Edgar, 92 C 4700 (N.D.Ill. Aug. 14, 1992) (dismissing suit without prejudice because complaint reiterated claim raised in another pending suit). The failure-to-protect claim asserted here also found its way into 93 C 5708. The three correctional guards named as defendants in this case are defendants in 93 C 5708. Unlike the complaint in 92 C 5381, the complaint in this case duplicates a pending rather than previously dismissed lawsuit. Nonetheless, the court knows of no reason why Jones should be allowed to proceed on one claim in two cases. Interests in "wise judicial administration" permit dismissal of a federal suit that parallels another action pending in federal court. Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir. 1993). Accordingly, the court denies Jones motion for leave to proceed in forma pauperis and dismisses this action as duplicative without prejudice to Jones right to pursue his claims in 93 C 5708 should he elect to proceed with that case within the limits imposed by this order.
An essential element of a § 1983 suit is a showing that defendants acted under color of state law when they violated plaintiff's rights. Bowman v. City of Franklin, 980 F.2d 1104, 1107 (7th Cir. 1992), cert. denied, 508 U.S. 940, 124 L. Ed. 2d 639, 113 S. Ct. 2417 (1993); Polenz v. Parrott, 883 F.2d 551, 555 (7th Cir. 1989). Plaintiff has no grounds for a § 1983 suit against the defendant news reporters because they are private parties. If Jones has any grounds to sue them, he would have to do so in state court. Although a federal court may exercise its diversity jurisdiction over state law claims, the burden of establishing the necessary elements for diversity jurisdiction rests with plaintiff. See NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 237 (7th Cir. 1995). Jones, who gives an Illinois address for all defendants in this case, does not meet that burden here. The court therefore is without jurisdiction to consider Jones' claims against the television personalities he names as defendants.
For good measure, Jones added a claim that three unknown Joliet prison officials tampered with his mail. Although Jones attested on the face of the complaint that he had never filed any related claims in federal court, the very same mail tampering claim had, in fact, already been raised in Jones v. Edgar, 94 C 4018. Because the claim alleged here arises out of the same facts as the mail tampering charges earlier asserted in 94 C 4018, the court dismisses it from this action without prejudice. Jones may pursue his claim in his earlier lawsuit if he desires, subject to the restrictions set forth in this order.
While returning from a deposition in one of his cases, Jones spotted an assistant warden and greeted her with a "Hi Edna." Edna was not pleased with Jones' familiarity and told an officer to escort Jones to disciplinary segregation. The next day, Jones dashed off and sent to court a complaint alleging the assistant warden violated his right to due process when she had him removed to segregation without a prior hearing.
Until recently, Jones' claim that he was removed to disciplinary segregation in advance of any hearing would have been analyzed under Hewitt v. Helms, 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983). Hewitt held that an inmate has no inherent constitutional right to avoid placement in administrative segregation pending an investigation or further review of disciplinary charges because "administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration." Id. at 468. Nonetheless, the Court held out the possibility that an inmate could raise a cognizable claim for relief if the regulations governing assignment to investigative segregation were so worded as to create a liberty interest that would trigger a constitutional violation, that is, if the regulation gave the inmate a legitimate expectation that he would not be removed to administrative segregation absent the presence of certain specified criteria. See Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460-62, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989). Following Hewitt, courts that have reviewed the language of the relevant administrative regulations governing removal ...