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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FREDERICK W. FISHER JR., : 4:CV-04-1945

:

Plaintiff : (Judge McClure)

:

v. : (Magistrate Judge Smyser)

:

JANAN LOOMIS, PHYSICIAN :

HEALTH CARE CORP., DONALD :

FISK, MILTON FRIEDMAN, :

DONALD JONES, PAUL :

DELROSSO, CARL PAUCI, :

JOSEPH NISH, RAYMOND :

COLLERAN, EDWARD BURKE :

:

Defendants :

O R D E R

December 12, 2005

BACKGROUND:

On September 1, 2004, the plaintiff, Frederick W. Fisher Jr., a state prisoner

at SCI-Waymart, proceeding pro se, commenced this action by filing a complaint

under 42 U.S.C. § 1983. On or about December 16, 2004, plaintiff filed an

amended complaint. 

The matter was initially referred to United States Magistrate Judge J. Andrew

Smyser.

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 Fisher also seeks damages because he lost a then-pending civil rights case. 

Fisher v. McDonald, No. 98-000282 (M.D. Pa.). He asserts that he was denied

access to the courts and that his legal materials were taken from him and many of

those documents were destroyed. See Fisher v. McDonald, No. 03-3710, slip op.

at 6 (3d Cir. April 23, 2004) (noting Fisher could bring these claims in a district

court).

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Fisher’s complaint asserts a cause of action under 42 U.S.C. § 1983. 

Plaintiff recites that defendants violated his rights protected by the First, Fifth,

Eighth, and Fourteenth Amendments of the Untied States Constitution. Plaintiff

alleges that on September 9, 2002, the defendants conspired to put plaintiff in the

prison’s solitary confinement for 180 days to retaliate against him for filing lawsuits. 

Plaintiff alleges that his solitary confinement was a result of his threats to sue the

prison and that it was imposed on him to discourage legal action by prisoners.1

Plaintiff asserts that as a result of defendants’ alleged conspiracy he was denied

due process during the administrative proceedings. Finally, plaintiff asserts that as

a result of being placed in solitary confinement he suffered a variety of physical and

emotional ailments including extreme emotional distress, lost the use of his left arm,

loss of his vision, that the confinement precipitated a September 30, 2002 heart

attack, and that the defendants conspired to end his life.

On May 27, 2005, defendants Colleran, Jones, Nish, Burke, DelRosso, Puci,

Fisk and Friedman filed a motion to dismiss. On June 21, 2005, defendants

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 In that document, Fisher requests that we transfer the case to another

judge, but does not address the magistrate judge’s report and recommendation.

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Physician Health Care Corp. and Loomis filed a motion to dismiss. On September

26, 2005, plaintiff filed a brief opposing both motions and defendants filed reply

briefs shortly thereafter.

On November 4, 2005, the magistrate judge issued a seventeen-page report

recommending that the plaintiff’s amended complaint be dismissed and the case be

closed.

On November 17, 2005, we granted plaintiff an extension of time to file

objections to Magistrate Judge Smyser’s report and recommendation. We

provided plaintiff until December 8, 2005 to file objections and at that time noted

that we would defer consideration of plaintiff’s other outstanding motions until after

we acted upon the report and recommendation. On or about December 5, 2005,

plaintiff filed a document which we will construe as his objections to the report and

recommendation.2

DISCUSSION:

I. RELEVANT LEGAL STANDARD

A district court reviews de novo those portions of a magistrate judge’s

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report and recommendation to which a party objects. L.R. 72.3. The court may

“accept, reject, or modify, in whole or in part, the findings or recommendations

made by the magistrate judge.” Id.

II. FISHER’S CLAIMS WILL BE DISMISSED

Plaintiff has not filed objections to the arguments raised in the magistrate

judge’s report and recommendation. After reviewing the record we agree with the

magistrate judge that the defendants’ motions to dismiss should be granted and the

plaintiff’s amended complaint dismissed.

First, we agree with the magistrate judge that placement in disciplinary

custody for 180 days is not, standing alone, an atypical or significant hardship that

would create a liberty interest protected by the Due Process Clause. See Sandin v.

Conner, 515 U.S. 472, 484 (1995). The learned magistrate judge noted several

cases in which prisoners were held in longer terms of custody and the Third Circuit

found that they were not exposed to an atypical or significant hardship in relation to

the ordinary incidents of prison life. Likewise, we agree with the magistrate judge

that because plaintiff was not facing the loss of a constitutionally protected liberty

interest at his hearing, even if he was not afforded perfect due process it was of no

constitutional significance. We also agree that we are unaware of a federally

protected right on the part of a state prisoner to be cited only by certain

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classifications of prison personnel.

 Second, the magistrate judge correctly addressed plaintiff’s First

Amendment claim. Plaintiff has admitted that he used profanities in addressing

prison personnel. We agree with the magistrate judge that the prison personnel

were within their powers by punishing Fisher for swearing, even if his profanity was

addressing his intent to use the legal process.

Third, we agree with the magistrate judge that plaintiff’s conspiracy claim is

broad and conclusory. The claim does not warrant relief for the reasons stated in

the magistrate judge’s report and recommendation.

Finally, we agree that there is not an allegation in the complaint that supports

an inference that any defendant was personally deliberately indifferent to a serious

medical need of Fisher. Fisher’s amended complaint only conclusorily asserts that

defendant Loomis is the cause of his disability.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. United States Magistrate Judge J. Andrew Smyser’s Report and

 Recommendation is adopted in full. (Rec. Doc. No. 93.)

2. The defendants’ motions to dismiss are granted. (Rec. Doc. Nos. 33

& 44.)

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3. Plaintiff’s amended complaint (Rec. Doc. No. 12) is dismissed for

failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). 

4. Fisher’s outstanding motions are denied as moot. (Rec. Doc. Nos.

81, 84, 91, 94.)

5. The Clerk is directed to close the case file.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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