UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ROBERT T. SMITH, 

 Plaintiff, Civil Action 2:18-cv-679 

 v. Judge Michael H. Watson 

 Magistrate Judge Elizabeth P. Deavers 

 

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. 

 
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. 

 

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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)). 
4 

“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) 
5 

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 
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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