United States District Court, M.D. Pennsylvania
September 20, 2005.
VETTER G. MOORE, III, Plaintiff
NY ATTORNEY GENERAL SPITZER, et al., Defendants.
The opinion of the court was delivered by: JOHN JONES, District Judge
MEMORANDUM AND ORDER
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,
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 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 USP-Lewisburg 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. 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 (1980); see also
28 U.S.C. § 636(b)(1); Local Rule 72.31. 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).
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, 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 action.*fn1 (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.*fn2 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.
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