The opinion of the court was delivered by: Thomas I. Vanaskie United States District Judge
On July 23, 2009, Plaintiff, Jesse Lee Stewart, Jr., proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983, alleging constitutional violations as a result of alleged improper medical care during his incarceration. (Complaint, Dkt. 1.) The nine-named Defendants in this action include Judge Jeffrey A. Smith, Commisioner Mark Smith, Commissioner Doughlas Mclinko, Commissioner John Sullivan, Sheriff Steven Evans, Warden Donald Stewart, Thomas Shuster, Elissa Slotter, and Andrea Button. Along with the Complaint, Plaintiff also filed an application to proceed in forma pauperis. (Dkt. 2.) For the reasons stated below, Plaintiff's motion to proceed in forma pauperis will be granted, Judge Jeffrey A. Smith will be dismissed from this action, and Plaintiff shall be afforded the opportunity to amend his Complaint.
During the course of the last month, Plaintiff, Jesse Lee Stewart, Jr., proceeding pro se, has filed three actions in this Court. Each of Mr. Stewart's claims, in some respect, involve his access to medical care during the course of his incarceration at the Bradford County Jail. On July 8, 2009, Stewart, proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (No. 3:09cv01302; Dkt. 1.) Stewart sought an urgent injunction allowing him to be released from state court custody on a medical furlough on July 13, 2009. (Id.) A facial review of the Petition revealed that he had failed to exhaust state court remedies and this Court subsequently dismissed the claim without prejudice. (Dkt. 3.)
On July 22, 2009, Stewart filed a complaint pursuant to 42 U.S.C. § 1983. (No. 3:09cv1420; Dkt. 1.) Attached to the complaint were numerous documents including a proposed temporary injunctive order, a notice of intention, a declaration in support of a motion to proceed in forma pauperis, a Pennsylvania Superior Court request to proceed in forma pauperis, a writ of habeas corpus filed in the Pennsylvania Superior Court, three state petitions for furlough, and other documentation in support of his claim. (Id. at 1-25.) On July 27, 2009, Stewart filed an amendment to this complaint, and included two additional defendants in the action. (Dkt. 4.) On July 29, 2009, Stewart filed a notice with the Court requesting a stay of the case in hope of resolving the situation without the Court's involvement. (July 26, 2009 Letter, Dkt. 5.)
The matter under consideration now is Plaintiff's second 42 U.S.C. § 1983 action filed in this Court on July 23, 2009. (No. 3:09cv1428; Dkt. 1.) The complaint, although not identical to his first section 1983 complaint, included many of the same attached documents. In addition to his Complaint, Petitioner also filed an application to proceed in forma pauperis. (Dkt. 2.) His motion to proceed in forma pauperis indicated:
I am willing to pursue my claims in this action under the new provisions of the Prison Litigation Reform Act, understanding that pursuing my claim requires payment of a partial filing fee and deduction of sums from my prison account when funds exist until the filing fee of $350.00 has been paid in full. (Dkt. 2, at 1.) Petitioner indicates that he is not presently employed at the institution, that he does not have any assets, and he does not receive income from any other source. (Id. at 2.) In addition to providing the details of his financial situation, Petitioner also avers that:
[His] medical illness puts [him] in danger not only because [he] can die from them but because if the other prisoners should find out through way of a [sic] officer it will cause [him] harm. [I]t is bound to place [him] at danger and has among the system. (Id.)
Plaintiff contends, "that there is an ongoing practice at the Brasdford [sic] county jail that indeed has been and is the bridge for dilliberate [sic] differences." (Dkt. 1, at 5.) Plaintiff avers that "he has been treated different by the county authority based upon his race of being black." (Id.) Plaintiff states that he was arrested in Bradford County on February 14, 2007, for writing a bad check in the amount of $300.00 and for "being in the car with an individual whom had fake cocain [sic] on himself the substance being baking soda." (Id.) Plaintiff alleges that two of his co-defendants were taken into federal custody and received a lesser sentence, but because he was prosecuted in state court the state court unfairly sentenced him because they wanted him "to pay the price." (Id. at 6.) Plaintiff avers that when he was "offered to plead guilty to a theft by deception and simple possession in exchange to be released the plaintiff being ignorant to the sum of what the burden was and the fact that he was just purely innocent of all charges, was between getting out or remaining in jail." (Id.)
Plaintiff was sentenced to incarceration of between ten (10) months to twenty-three (23) months and twenty-nine (29) days. (Id.) He avers that "the severity of the punishment was way beyond the scope of writing a BAD CHECK in the amount of $300.00 and the plaintiff had never written a bad check in his life." (Id.) (emphasis in original).
The plaintiff knows that he was discriminated against one because of his color being black and -- because he chose to fight the alledged [sic] charges by himself, the plaintiff contends that he was told that by deputy sheriffs that will refuse to come forward and state it on the record.
THIS POINT OF THE CLAIM CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT AND THE FEDERAL LAW STATES IT CAN NOT BE DONE. (Dkt. 1, at 6) (emphasis in original). Plaintiff avers that the Bradford County Probation Department has wrongfully discriminated against him while he was trying to be released, by going to his common-law wife's home and not allowing him to go home because his common-law wife had an outstanding $60.00 fine. (Id.) Plaintiff contends that he has received "a lot of vindictiv[e]ness" and that he has "by no means . . . been treated impartial or fair and the plaintiff can point to examples to prove so." (Id.)
Plaintiff states that the "president judge" and Commissioner Sullivan were delivered a copy of the Plaintiff's medical condition marked confidential. Commissioner Sullivan, however, purportedly forwarded the information to the Bradford County Jail. (Id. at 7.) Plaintiff avers that he signed a waiver allowing the jail physician to view the medical records after the above incident had taken place, based upon the fact that the plaintiff was told that if he allowed the facility physician to look at the records he would be permitted the furlough, however the plaintiff was not permitted the furlough and the plaintiff is going to attempt to submitt [sic] a third request for the judge to furlough him for the purpose of a medical leave. (Dkt. 1, at 7.) Plaintiff states that at a July 16, 2009 doctor's appointment the plaintiff met with doctors to discuss his medical condition and that the deputy refused to stand outside so that Plaintiff could have some privacy with the physician. (Id.) Plaintiff avers that the deputy told him that he would tell his co-workers about Plaintiff's illnesses and that he consequently violated "HIPPA LAW" and the "RIGHT TO CONFIDENTIALITY." (Id.) (emphasis in original). Plaintiff contends that he has many more scheduled medical appointments and at this time plaintiff seeks a temporary order allowing him to attend to his medical issues with grace and privacy, and it is the hope of the plaintiff that this court might see that the plaintiffs [sic] crimes have no such severity as to the severity of the plaintiffs [sic] life, and that this court may see that the plaintiff has been mistreated as far as the lower court giving him a sentence that is disproportionate to the nature of the crime. Wherefore the plaintiff prays ...