Smith v. Mohr et al, No. 2:2018cv00679 - Document 3 (S.D. Ohio 2018)
Court Description: ORDER AND REPORT AND RECOMMENDATION: ORDER granting 1 MOTION for Leave to Proceed in forma pauperis. It RECOMMENDS that Plaintiff's claims be DISMISSED for failure to state a claim on which relief may be granted. In addition,the Court STRIK ES Plaintiff's purported Notice of Voluntary Dismissal as ineffective. (ECF No. 1-4.) Objections to R&R due by 7/27/2018. Signed by Magistrate Judge Elizabeth Preston Deavers on July 13, 2018. (jlk) (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. 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION ROBERT T. SMITH, Plaintiff, Civil Action 2:18-cv-679 Judge Michael H. Watson Magistrate Judge Elizabeth P. Deavers v. GARY C. MOHR, et al., Defendants. ORDER and REPORT AND RECOMMENDATION Plaintiff, Robert T. Smith, a state inmate who is proceeding without the assistance of counsel, seeks to file a civil action without prepayment of fees or costs. Plaintiff’s motion for leave to proceed in forma pauperis, ECF No. 1, is GRANTED. All judicial officers who render services in this action shall do so as if the costs had been prepaid. However, having performed the initial screen of the Complaint required by 28 U.S.C. § 1915(e) to identify cognizable claims and to recommend dismissal of Plaintiff’s Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2), it is RECOMMENDED that the Court DISMISS this Plaintiff’s claims against Defendants for failure to assert any claim on which relief may be granted. Dockets.Justia.com I. Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to “lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the statute, which provides in pertinent part: (2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that-* * * (B) the action or appeal-(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or . . . . 28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or upon determination that the action fails to state a claim upon which relief may be granted. 1 Formerly 28 U.S.C. § 1915(d). A federal court has limited subject matter jurisdiction. “The basic statutory grants of federal court subject-matter jurisdiction are contained in 28 U.S.C. § 1331, which provides for ‘[f]ederal-question’ jurisdiction, and § 1332, which provides for ‘[d]iversity of citizenship’ jurisdiction.” Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006). Federal-question jurisdiction is invoked when a plaintiff pleads a claim “arising under” the federal laws, the Constitution, or treaties of the United States. Id. (citation omitted). For a federal court to have diversity jurisdiction pursuant to Section 1332(a), there must be complete diversity, which means that each plaintiff must be a citizen of a different state than each defendant, and the amount in controversy must exceed $75,000. Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996). II. Plaintiff claims that Defendants denied him adequate medical treatment for blood pressure, vertigo, and sleep apnea. (ECF No. 1-2 at 2.) His Complaint, however, fails to allege any acts of misconduct or personal involvement by Defendants. Indeed, Plaintiff’s Complaint states no facts at all beyond the listing of his alleged medical conditions and claiming that Defendants denied him adequate medical treatment for them. (Id.) A complaint filed by a pro se plaintiff must be “liberally construed” and “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, however, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill v. Lappin, 630 F.3d 468, 470-471 (6th Cir. 2010) (“dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to state a claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The Court must accept all well-pleaded factual allegations as true, but need not “accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555. Although a complaint need not contain “detailed factual allegations,” it must provide “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading that offers labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id. at 557. The complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted). Although Plaintiff alleges constitutional deprivations, he proffers no facts about the events in question or any actual injury. (ECF No. 1-2 at 2.) Plaintiff does not state what conduct he believes constitute the deprivation or any other details of the alleged incidents. Moreover, he makes no mention of how the named Defendants were involved. Even construed liberally, Plaintiff’s claim against Defendants amounts to a mere conclusory allegation. Iqbal, 556 U.S. at 678. Accordingly, the Undersigned finds that Plaintiff’s Complaint fails to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2). III. Simultaneously with the filing of his Complaint, Plaintiff also purports to file a Notice of Voluntary Dismissal pursuant to Rule 41(a)(1). (ECF No. 1-4.) Because Plaintiff has not, at the time of filing, been granted leave to proceed in forma pauperis under 28 U.S.C. §§ 1915(e)(2) 4 and 1915A, no claim yet exists for Plaintiff to dismiss. The Court, therefore, finds that Plaintiff’s purported Notice is not properly before the Court and STRIKES it from the docket. IV. For the reasons explained above, the Undersigned RECOMMENDS that Plaintiff’s claims be DISMISSED for failure to state a claim on which relief may be granted. In addition, the Court STRIKES Plaintiff’s purported Notice of Voluntary Dismissal as ineffective. (ECF No. 1-4.) PROCEDURE ON OBJECTIONS If any party seeks review by the District Judge of this Report and Recommendation, it may, within fourteen (14) days, file and serve on all parties objections to the Report and Recommendation, specifically designating this Report and Recommendation, and the part in question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections must be filed within fourteen (14) days after being served with a copy. Fed. R. Civ. P. 72(b). The parties are specifically advised that the failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to magistrate judge’s report and recommendation). Even when timely objections are filed, appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 5 981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)). IT IS SO ORDERED. Date: July 13, 2018 /s/ Elizabeth A. Preston Deavers ELIZABETH A. PRESTON DEAVERS UNITED STATES MAGISTRATE JUDGE 6
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