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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FREDERICK W. FISHER, JR., : Civil No. 4: 04-1945

Plaintiff : (Judge McClure)

v. : (Magistrate Judge Smyser)

JANAN LOOMIS, et al, :

Defendants :

O R D E R

July 15, 2005

BACKGROUND:

On September 1, 2004, 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. On March 25, 2005, the court ordered the

Clerk of the Court to serve the plaintiff’s amended complaint on the defendants and

the defendants were requested to waive service. In a series of filings, on April 28,

2005 (Rec. Doc. No. 26), May 15, 2005 (Rec. Doc. No. 29), and June 6, 2005

(Rec Doc. No. 34), plaintiff moved the court for default and entry of default

judgment. 

On July 1, 2005, United States Magistrate Judge J. Andrew Smyser issued a

Case 4:04-cv-01945-JFM Document 56 Filed 07/15/05 Page 1 of 4
1Fisher notes that the law would make sense, if there was an exception for its

application to a case like his, a case that involves a self-described honorably

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four-page report and recommendation recommending that the plaintiff’s three

motions for default and default judgment (Rec. Doc. Nos. 26, 29, and 34), be

denied and that the case be remanded to Magistrate Judge Smyser for further

proceedings. (Rec. Doc. No. 52.) Plaintiff filed objections to Magistrate Judge

Smyser’s report and recommendation on or about July 13, 2005. (Rec. Doc. No.

55.) Plaintiff also previously filed, on July 8, 2005, a motion to stay all future

proceedings pending disposal of undecided motions. (Rec. Doc. No. 53.) 

DISCUSSION:

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

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.

Fisher objects to the magistrate judge’s report and recommendation with

very colorful language. He asserts that 42 U.S.C. § 1997e(g)(1), the statutory

authority that allows waiver of the right to reply in “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,” is vague and unfair to prisoner litigants.1

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discharged World War II Veteran. (Rec. Doc. No. 55, at 4.)

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Fisher states that “42 U.S.C. § 1997e(g)(1) applies to namely 42 U.S.C. § 1983

only!” (Rec. Doc. No.

 55, at 2) (emphasis in original). This is plainly not the case, although the statute

only references § 1983 by name, it applies to “any other Federal law” as well. 

Fisher’s objections are without merit and overruled.

In his objections to the magistrate judge’s report and recommendation Fisher

makes his “official request to remove the magistrate from the case.” (Rec. Doc.

No. 55, at 3.) Fisher’s request that Magistrate Judge Smyser’s be removed from

the case appears, curiously, to stem from Magistrate Judge Smyser’s applying the

law of 42 U.S.C. § 1997, and the language contained within the statute. This

argument puzzles the court. Of course, applying the law of the land to the case at

hand is not grounds to dismiss the esteemed magistrate judge. In fact, it is exactly

the court’s task.

In view of the other rulings made by the court in this order, Fisher’s motion

to stay (Rec. Doc. No. 53) will be denied as moot.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

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1. The report and recommendation of United States Magistrate Judge J.

Andrew Smyser (Rec. Doc. No. 52), is adopted in full for the reasons set forth

therein, as well as for the reasons set forth in this order.

2. Fisher’s motions for default and default judgment are denied. (Rec.

Docs. No. 26, 29, and 34.)

3. Fisher’s informal request to remove Magistrate Judge J. Andrew

Smyser from the above captioned case is denied.

4. Fisher’s motion to stay (Rec. Doc. No. 53) is denied as moot. 

5. The case is remanded to Magistrate Judge J. Andrew Smyser for

further proceedings.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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