Smith v. Mohr et al, No. 2:2018cv00679 - Document 5 (S.D. Ohio 2018)

Court Description: OPINION and ORDER affirming and adopting 3 the Report and Recommendation. Signed by Judge Michael H. Watson on 10/4/18. (jk) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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Smith v. Mohr et al Doc. 5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION Robert T. Smith, Plaintiff, V. Gary C. Mohr, et al.. Defendants. Case No. 2:18-cv-679 Judge Michael H. Watson Magistrate Judge Deavers OPINION AND ORDER PlaintifF moved for leave to proceed in forma pauperis and filed a Complaint in this case on July 10, 2018. EOF Nos. 1; 1-2. Plaintiff also filed a purported notice of voluntary dismissal on the same day. EOF No. 1-4. After conducting an initial screen pursuant to 26 U.S.C. § 1915 and § 1915A, Magistrate Judge Deavers Issued a Report and Recommendation ("R&R") recommending the Court dismiss Plaintiffs Complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2). ECF No. 3. The R&R noted that, although the Complaint contained legal conclusions that Defendants denied Plaintiff adequate medical treatment for his blood pressure, vertigo, and sleep apnea. It was devoid of any mention of specific facts regarding his medical conditions, the services rendered (or not rendered) In treatment of those conditions, or any facts detailing the personal Involvement of Defendants. Id. at 3. The R&R concluded that, because the Complaint contained nothing more than legal conclusions as to Defendant's liability, it failed to state a claim on Dockets.Justia.com which relief may be granted. Id. at 4. Further, Magistrate Judge Deavers struck the notice of voluntary dismissal because, at the time it was filed, Plaintiff had not yet been granted leave to proceed in forma pauperis, the Complaint therefore was not operative, and there was therefore no claim for Plaintiff to dismiss. Id. at 4-5. Plaintiff timely objected. EOF No. 4. Plaintiff argues that the R&R is "contrary to" his notice of voluntary dismissal filed under Federal Rule of Civil Procedure 41. Plaintiff asks the Court to reject the R&R and grant his notice of voluntary dismissal without prejudice. Magistrate Judge Deavers issued the R&R pursuant to Federal Rule of Civil Procedure 72(b). Under that rule, the Undersigned must determine de nova any part of the Magistrate Judge's disposition that has been properly objected to. Fed. R. Civ. P. 72(b)(3). The Undersigned may accept, reject, or modify the R&R, receive further evidence, or return the matter to the Magistrate Judge with instructions. Id. Plaintiffs objection is overruled. Magistrate Judge Deavers was correct In finding that, because the Court had not yet ruled on Plaintiffs motion for leave to proceed In forma pauperis at the time Plaintiff filed his motion for voluntary dismissal, there was no "action" for Plaintiff to dismiss when his motion was filed. That Is, Rule 41(a)(1)(A)(l) permits a plaintiff to dismiss an "action" voluntarily by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment. Fed. R. Civ. P. 41(a)(1)(A)(i). An "action" cannot Case No. 2:18-CV-679 Page 2 of 3 be dismissed, however, unless an "action" has first commenced. Otherwise, there is nothing to dismiss. "A civil action is commenced by filing a complaint with the court." Fed. R. Civ. P. 3. But under §1915 and § 1915A, the Complaint is not deemed filed until after the Court grants PlaintifTs motion for leave to proceed in forma pauperls. See 28 U.S.C. § 1915A(a) (directing the court to screen prisoner complaints prior to docketing the same); § 1915(a)(1) ("[A]ny court of the United States may authorize the commencement... of any suit... without prepayment of fees ... by a person who submits an affidavit "). As such, there was no action to dismiss when Plaintifffiled his motion for voluntary dismissal. The R&R is AFFIRMED and ADOPTED. The Court dismisses the Complaint, WITHOUT PREJUDICE, under § 1915 and § 1915A for failure to state a claim. IT IS SO ORDERED. MICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT Case No. 2:18-cv-679 Page 3 of 3

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