UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Robert T. Smith,

Plaintiff,

V. Case No. 2:18-cv-679

Gary C. Mohr, et al.. Judge Michael H. Watson

Defendants. 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. Itwas 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, itfailed to state a claim on
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 plaintiffto 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

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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

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