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IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

VETTER G. MOORE, : No. 4:CV-05-0556

:

Plaintiff, : (Judge Jones)

:

v. :

:

IRS, U.S. JUDGE NEALON, :

U.S JUDGE CALDWELL, :

U.S. MAGISTRATE SMYSER, :

GOVERNMENT OF THE U.S.A. :

WARDEN SMITH, U.S. ATTORNEY :

GENERAL AND U.S. ATTORNEY, et al., :

:

Defendants. :

MEMORANDUM AND ORDER

April 29, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Before us for disposition is a Petition for Writ of Habeas Corpus (“Petition”)

filed by Vetter G. Moore (“Moore” or “Plaintiff”), an inmate currently incarcerated

at the United States Penitentiary, Lewisburg, Pennsylvania. (See Rec. Doc. 1). 

U.S. Magistrate Judge Malachy Mannion, to whom this case was referred for

preliminary review, previously issued an order construing the Petition as a civil

rights action brought pursuant to 42 U.S.C. § 1983. (See Rec. Doc. 2). 

In accordance with the Prison Litigation Reform Act of 1995, Title 28

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U.S.C. § 1915A requires a district court to screen any complaint brought by a

prisoner who seeks relief from a government employee for purposes of

determining whether, inter alia, the complaint fails to present a viable cause of

action. This initial screening is to be done as soon as practicable and need not

await service of process. 28 U.S.C. § 1915A(a).

Magistrate Judge Mannion conducted the screening mandated by § 1915A,

and rendered his Report and Recommendation to this Court on April 11, 2005,

wherein he recommended that Plaintiff’s Petition be dismissed for failure to state a

claim upon which relief may be granted as to all defendants. Moore has filed

objections to the Magistrate’s Report and Recommendation and this matter is now

ripe for our review. (See Rec. Doc. 9). For the reasons which follow we will

adopt the recommendation of Judge Mannion and deny the Petition.

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 72.31. District judges have wide discretion as to how they treat

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

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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

Title 28 United States Code, Section 1915(g) provides:

(g) In no event shall a prisoner bring a civil action or appeal a

judgment in a civil action or proceeding under this section if the

prisoner has, on 3 or more prior occasions, while incarcerated

or detained in any facility, brought an action or appeal in a

court of the United States that was dismissed on the grounds

that it is frivolous, malicious, or fails to state a claim upon

which relief may be granted, unless the prisoner is under

imminent danger of serious physical injury.

On his Application to Proceed In Forma Pauperis (“Application”), Moore, wrote,

under penalty of perjury, that he has not brought three or more frivolous actions

while incarcerated. (See Application at 1). However, as Magistrate Judge

Mannion noted, Moore has filed at least 115 actions in the federal courts of the

United States and at least three within the Middle District of Pennsylvania, all of

which were dismissed due to their frivolous nature and failure to state claims upon

which relief could be granted. Therefore, it is clear that Moore falsified his

Application in an attempt to proceed with this action in forma pauperis.

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Despite this material misrepresentation, which ordinarily would be fatal to

his case, Moore also appears to argue that his case should be permitted to proceed

because of the exception under § 1915 for prisoners in “imminent danger.” AbdulAkbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001)(en banc). In support of this

ground, Moore makes the incredible, unsubstantiated, and bald allegation that on

December 27, 2004, the warden at USP-Lewisburg paid inmates and staffmembers to attack him. We agree with Magistrate Judge Mannion that this

allegation is entirely frivolous. See Gibbs v. Cross, 160 F.3d 962, 967 (3d Cir.

1998)(“discrediting factual claims of imminent danger that are ‘clearly baseless,’

i.e., allegations that are fantastic or delusional and rise to the level of the "irrational

or wholly incredible.")(quoting Denton v. Hernandez, 504 U.S. 25, 33 (1992). In

Denton, the Supreme Court remarked that “we are confident that the district courts,

who are all too familiar with factually frivolous claims, are in the best position to

determine which cases fall into this category.” Denton, 504 U.S. at 33. Moore

presents us with nothing which is probative of his claim that others were paid to

attack him, and his submissions contain no exhibits such as affidavits,

administrative records, or other documentation of any kind substantiating his

contention, which as noted is incredible on its face. We therefore utilize the

discretion afforded to us and determine that Moore’s claim of imminent danger is

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indeed frivolous and not worthy of belief. Accordingly, Moore cannot avail

himself of the “imminent danger” exception as it relates to the Petition. 

Finally, we note that while Moore’s submitted objections are almost entirely

illegible and incomprehensible, we can conceive of no legal argument that he

might interpose at this juncture to save his case. Simply stated, Moore lied in his

Application and now seeks to rescue himself through an assertion which we judge

to be similarly contrived and unbelievable. Accordingly, as we find no error in

Magistrate Judge Mannion’s well-reasoned Report and Recommendation, we will

adopt it as our own.

NOW, THEREFORE, IT IS ORDERED THAT:

1. The Report and Recommendation (Rec. Doc. 8) issued on April 11,

2005 by Magistrate Judge Mannion is adopted in its entirety.

2. Defendant’s Petition for Writ of Habeas Corpus (Rec. Doc. 1), which

is construed as a civil rights action pursuant to 42 U.S.C. § 1983, is

hereby DENIED. 

3. Plaintiff’s Motion for Release from Administrative Detention (Rec.

Doc. 10) is DENIED as moot.

3. The Clerk is directed to close the file on this case.

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s/ John E. Jones III 

John E. Jones III

United States District Judge

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