1

 We note that also on March 1, 2005, the Magistrate Judge issued an order granting

Plaintiff’s Application to Proceed In Forma Pauperis, directing service of Plaintiff’s Motion for

a Preliminary Injunction on Defendants, and set a briefing schedule for Plaintiff’s Motion for a

1

IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BRIAN N. BAKER, : No. 4:CV-05-281

:

Plaintiff : (Judge Jones)

:

v. : (Magistrate Judge Smyser)

:

JEFFREY A. BEARD, et al., :

:

Defendants. :

MEMORANDUM AND ORDER

June 21, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

The plaintiff, Bryan N. Baker (“Plaintiff” or “Baker”), a prisoner proceeding

pro se, commenced this 42 U.S.C. § 1983 (“§ 1983") action by filing a complaint

in the United States District Court for the Middle District of Pennsylvania on

February 8, 2005. (See Rec. Doc. 1). The case was referred to Magistrate Judge J.

Andrew Smyser for preliminary review. 

On March 1, 2005, Magistrate Judge Smyser issued a report recommending

that the Pennsylvania Board of Probation and Parole (“the Board”) be dismissed

from this action as Plaintiff’s claim is barred by the Eleventh Amendment.1

 On

Case 4:05-cv-00281-JEJ Document 46 Filed 06/21/05 Page 1 of 4
Preliminary Injunction. (See Rec. Doc. 9). 

2

March 31, 2005, we granted the Magistrate Judge’s report in its entirety and denied

Plaintiff’s Motion to Consolidate this case with Sides v. Marsh, 1:04-cv-1349 (doc.

11). (See Rec. Docs. 10, 14). 

On May 27, 2005, Magistrate Judge Smyser issued a report recommending

that Plaintiff’s Motion for a Preliminary Injunction be denied as Plaintiff does not

have a reasonable probability of success on the merits of his claims and Plaintiff

will not be irreparably injured if a preliminary injunction is not issued. (See Rep.

& Rec. at 10-11). 

Objections to the report were due on June 13, 2005 and to date none have

been filed.

STANDARD OF REVIEW:

When no objections are made to a magistrate’s report, the district court is

not statutorily required to review a magistrate judge’s report before accepting it. 

See Thomas v. Arn, 474 U.S. 140, 149 (1985). According to the Third Circuit,

however, “the better practice is to afford some level of review to dispositive legal

issues raised by the report.” Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.

1987). When a district court accepts a magistrate judge’s report, the report

becomes the judgment of the court. Id. 

Case 4:05-cv-00281-JEJ Document 46 Filed 06/21/05 Page 2 of 4
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DISCUSSION:

Our review of this case confirms the Magistrate Judge’s determinations and

although we have not been presented with any reason to revisit them, we will

briefly reiterate the salient aspects of the Magistrate Judge’s report and

recommendation. 

First, as the Magistrate Judge explained, to obtain a preliminary injunction,

the moving party must show the following: (1) a reasonable probability of success

on the merits of the litigation; (2) that the movant will be irreparably injured

pendente lite if relief is not granted; (3) the possibility of harm to other interested

persons from the grant or denial of the injunction; and (4) the public interest. See

Punnett v. Carter, 621 F.2d 578, 582 (3d Cir. 1980); see also Acierno v. New

Castle County, 40 F.3d 645, 653 (3d Cir. 1994)(quoting Delaware River Port Auth.

v. Transamerican Trailer Transp., Inc., 501 F.2d 917, 919-20 (3d Cir. 1974))

(internal citations omitted). Second, after a careful review of the record, we agree

with the Magistrate Judge that it is not likely that Plaintiff will succeed at trial in

proving by a preponderance of the evidence that Defendants have been or are

deliberately indifferent to a serious medical need of Plaintiff. Finally, we are in

agreement with the Magistrate Judge that Plaintiff will not be irreparably injured if

a preliminary injunction is not issued in the case sub judice.

Case 4:05-cv-00281-JEJ Document 46 Filed 06/21/05 Page 3 of 4
4

As Plaintiff has therefore not demonstrated the afore-stated factors necessary

to obtain a preliminary injunction, Plaintiff’s Motion for a Preliminary Injunction

is denied. Because we find no error in Magistrate Judge Smyser’s report and

recommendation and, because no objections have been filed, we will adopt the

report as our own.

NOW, THEREFORE, IT IS ORDERED THAT:

1. Magistrate Judge Smyer’s Report and Recommendation (doc. 40) is

adopted in its entirety. 

2. Plaintiff’s Motion for a Preliminary Injunction (doc. 4) is DENIED.

3. The case and any pending motions are remanded to Magistrate Judge

Smyser for further proceedings in this case.

s/ John E. Jones III

 John E. Jones III

United States District Judge

Case 4:05-cv-00281-JEJ Document 46 Filed 06/21/05 Page 4 of 4