UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FREDERICK W. FISHER, JR., : CIVIL NO: 4:CV-04-1945

Plaintiff :

: (Judge McClure)

v. :

: (Magistrate Judge Smyser)

JANAN LOOMIS, et al, :

:

Defendants :

REPORT AND RECOMMENDATION

On September 1, 2004, the plaintiff, a prisoner

proceeding pro se, commenced this 42 U.S.C. § 1983 action by

filing a complaint. On December 15, 2004, the plaintiff filed

an amended complaint. 

By an Order dated March 25, 2005, the Clerk of Court

was directed to serve the plaintiff’s amended complaint on the

defendants in accordance with Fed.R.Civ.P. 4 and the

defendants were requested to waive service pursuant to Rule

4(d). The United States Marshal sent the Notice of Lawsuit

and Request for Waiver of Service of Summons forms to the

defendants on March 30, 2005. See Doc. 27.

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The plaintiff has filed three motions seeking the

entry of default and default judgment against the defendants

based on the defendants’ failure to answer the amended

complaint. See Docs. 26, 29 & 34. 

42 U.S.C. §1997e(g) provides:

(1) Any defendant may waive the right to

reply to any action brought by a prisoner

confined in any jail, prison, or other

correctional facility under section 1983 of

this title or any other Federal law. 

Notwithstanding any other law or rule of

procedure, such waiver shall not constitute an

admission of the allegations contained in the

complaint. No relief shall be granted to the

plaintiff unless a reply has been filed.

Pursuant to 42 U.S.C. §1997e(g)(1) the defendants may

waive their right to respond to the complaint. Thus, default

and default judgment should not be entered against the

defendants. Moreover, the defendants have responded to the

amended complaint by filing motions to dismiss the amended

complaint. Accordingly, it will be recommended that the

plaintiff’s motions for default and default judgment be

denied.

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We note that in addition to requesting default and

default judgment the plaintiff requests that the motion to

dismiss filed by the corrections defendants be stricken based

on Fed.R.Civ.P. 11(a) because that motion does not contain an

original signature of the defendants’ attorney. The

corrections defendants’ counsel signed the motion to dismiss

electronically in accordance with Local Rule 5.6 and § 11 of

the court’s Electronic Case Filing Policies and Procedures. 

Accordingly, there is no basis to strike the motion to

dismiss. 

The plaintiff also contends that counsel for the

corrections defendants should be disqualified because there is

no record that she is admitted to practice in the Middle

District of Pennsylvania. We checked the role of attorneys

kept by the Clerk of Court, and defense counsel is admitted to

practice before this court. She was generally admitted on May

13, 2005. Thus, there is no basis to disqualify her from this

case. 

Based on the foregoing, it is recommended that the

plaintiff’s motions (docs. 26, 29 & 34) for default and

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default judgment be denied and that the case be remanded to

the undersigned for further proceedings. 

/s/ J. AndrewSmyser

J. Andrew Smyser

Magistrate Judge

DATED: July 1, 2005. 

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