1

IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

VETTER G. MOORE, III, : No. 4:05cv1045

:

Plaintiff : (Judge Jones)

:

v. :

: (Magistrate Judge Mannion)

NY ATTORNEY GENERAL :

SPITZER, et al., :

:

Defendants. :

MEMORANDUM AND ORDER

September 20, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On March 10, 2005, the above-captioned matter was filed in the United

States District Court for the Southern District of New York. The action was

ordered transferred to the United States District Court for the Middle District of

Pennsylvania by May 11, 2005 order.

This case was referred to Magistrate Judge Malachy E. Mannion for

preliminary review. On August 23, 2005, Magistrate Judge Mannion issued a

Report and Recommendation within which he concluded the instant action should

be dismissed for Plaintiff’s failure to comply with the Magistrate Judge’s June 3,

2005 order by either submitting the appropriate application to proceed in forma

Case 4:05-cv-01045-JEJ Document 16 Filed 09/20/05 Page 1 of 6
2

pauperis and authorization form, or the appropriate filing. Alternatively, the

Magistrate Judge recommended that this action be transferred to the United States

District Court for the Northern District of New York with the issue of Plaintiff’s

financial status to be determined by that court. (See Rep. & Rec. at 5). 

Objections to the Magistrate Judge’s Report were filed on August 29, 2005. 

This matter is now ripe for disposition. 

FACTUAL BACKGROUND/PROCEDURAL HISTORY:

Plaintiff Vetter G. Moore, III (“Plaintiff” or “Moore”), an inmate at the

United States Penitentiary in Lewisburg, Pennsylvania (“USP-Lewisburg”) filed

this action as a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241;

however, upon review, it appeared that Plaintiff was challenging the conditions of

his confinement, and in particular his transfer from a New York facility to USPLewisburg which he asserts is an attempt to interfere with a “million dollar

lawsuit” he filed in New York, as opposed to the fact or duration of his

confinement. (Rep. & Rec. at 1). Accordingly, as the Magistrate Judge explained,

it appeared that the action was more appropriately designated as a civil rights

action pursuant to 42 U.S.C. § 1983. Plaintiff filed what the Magistrate Judge

construed as a Motion for Reconsideration of that determination on June 20, 2005

(doc. 5), which was denied by the Magistrate Judge’s August 23, 2005 order (doc.

Case 4:05-cv-01045-JEJ Document 16 Filed 09/20/05 Page 2 of 6
3

13). 

STANDARD OF REVIEW:

When objections are filed to a report of a magistrate judge, we make a de

novo determination of those portions of the report or specified proposed findings or

recommendations made by the magistrate judge to which there are objections. See

United States v. Raddatz, 447 U.S. 667 (l980); see also 28 U.S.C. §636(b)(1);

Local Rule 72.3l. Furthermore, district judges have wide discretion as to how they

treat recommendations of a magistrate judge. See id. Indeed, in providing for a de

novo review determination rather than a de novo hearing, Congress intended to

permit whatever reliance a district judge, in the exercise of sound discretion,

chooses to place on a magistrate judge's proposed findings and recommendations. 

See id., see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark,

749 F.2d 5, 7 (3d Cir. 1984).

DISCUSSION:

We initially note that the Clerk’s office has properly construed a submission

filed by Plaintiff and purporting to provide notice of a direct appeal taken from the

Magistrate Judge to the Third Circuit Court of Appeals, as objections to the

Magistrate Judge’s Report and Recommendation. (See Rec. Doc. 15). The

aforementioned one page submission, consisting primarily of the caption in this

Case 4:05-cv-01045-JEJ Document 16 Filed 09/20/05 Page 3 of 6
4

case, merely is identified as a notice of appeal in which Plaintiff asserts that the

appeal is taken from the Magistrate Judge’s “abusive changing 2241 into Bivens

suit on August 24, 2005 retransfer 2241 back to S. Dist. of NY.” Id. Plaintiff

utterly fails to specifically address any aspect of the Magistrate Judge’s Report, nor

does he render or any specific objections thereto. While we certainly have the

option to seek more specificity from Plaintiff, it is unnecessary to do so as there

exists a more overarching reason to dismiss this case. 

As the Magistrate Judge explained in his Report, Plaintiff had not submitted

the proper financial papers to proceed with this action. Accordingly, the

Magistrate Judge issued a June 3, 2005 order directing: the Clerk of Court to

correct the docket to reflect that the instant action was construed as a civil rights

action pursuant to 42 U.S.C. § 1983; the Clerk of Court to serve Plaintiff with the

appropriate application to proceed in forma pauperis and authorization form

application to civil rights actions; Plaintiff to either return the completed

application to proceed in forma pauperis and authorization form, or to submit the

$250 filing fee for a civil rights action within twenty (20) days of the date of the

order; and Plaintiff was advised that his failure to either return the application to

proceed in forma pauperis and authorization form, or submit the proper filing fee,

within the allotted time period would result in a recommendation to dismiss this

Case 4:05-cv-01045-JEJ Document 16 Filed 09/20/05 Page 4 of 6
1

 As the Magistrate Judge notes, on May 24, 2005, the Court received another action filed

by Plaintiff and docketed as 4:05-cv-1053. As both actions were related in subject matter, the

Magistrate Judge issued an order directing that 4:05-cv-1053 be consolidated into the instant

case. (Rep. & Rec. at 2-3). 

2

 We are cognizant of the Magistrate Judge’s alternative recommendation that this case

be transferred to the United States District Court for the Northern District of New York as he

asserts that it does not appear that venue is proper in this Court. In that regard, Plaintiff is

instructed that if he brings another action alleging violations of his constitutional rights regarding

his confinement in the Northern District of New York and the only named defendants are

officials and/or individuals located in the Northern District of New York, venue is appropriate in

the Northern District of New York. 

5

action.1 (See Rec. Doc. 3). 

To date, Plaintiff has utterly disregarded the Magistrate Judge’s June 3, 2005

Order and failed to either submit the proper application to proceed in forma

pauperis and authorization form, or the appropriate filing fee. Accordingly, our

review of this case confirms Magistrate Judge Mannion’s determination to dismiss

the case sub judice. The case will be dismissed without prejudice.2

 

Case 4:05-cv-01045-JEJ Document 16 Filed 09/20/05 Page 5 of 6
6

NOW, THEREFORE, IT IS ORDERED THAT:

1. Magistrate Judge Mannion’s Report and Recommendation (doc. 14) is

granted in part for the reasons stated herein.

2. This action shall be dismissed for Plaintiff’s failure to comply with

the Magistrate Judge’s June 3, 2005 order by either submitting the

appropriate application to proceed in forma pauperis and

authorization, or the appropriate filing fee.

3. This case shall be dismissed without prejudice.

4. The Clerk shall close the file on this case.

s/ John E. Jones III

John E. Jones III

United States District Judge

Case 4:05-cv-01045-JEJ Document 16 Filed 09/20/05 Page 6 of 6