United States District Court, S.D. Ohio, Eastern Division
Robert F. Goldwire, Plaintiff,
Gary Mohr, et al., Defendants.
Magistrate Judge Vascura
OPINION AND ORDER
MICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT
Judge Vascura, to whom this case was referred, issued a
Report and Recommendation ("R&R") recommending
the Court grant Plaintiffs motion to clarify, ECF No. 20, and
dismiss this pro se prisoner civil rights case
without prejudice. R&R, ECF No. 29.
filed what is listed on the docket as a Complaint, ECF No. 4,
and what is listed on the docket as an Amended Complaint, ECF
No. 15, and then filed a motion to clarify, ECF No. 20. The
motion to clarify states that ECF No. 4 was improperly listed
on the docket as a Complaint. Plaintiff explains that he
intended ECF No. 4 to operate as a motion for a preliminary
injunction and temporary restraining order ("TRO")
and that said motion is separate from his Complaint, which
appears as ECF No. 15 (and which, according to Plaintiff, is
incorrectly described as an amended complaint).
Plaintiffs motion to clarify asks that the docket entries be
changed to reflect that ECF No. 4 is a motion and ECF No. 15
is an original Complaint. Mot. Clarify 1, ECF No. 20. The
motion also states that Plaintiff was still exhausting his
administrative grievances when he filed his motion, ECF No.
4, but that he had exhausted said administrative grievances
by the time he filed his Complaint, ECF No. 15. Id.
Judge Vascura's R&R accurately summarized the
aforementioned. R&R 1-2, ECF No. 29. It further explained
that Federal Rule of Civil Procedure 3 provides that
"[a] civil action is commenced by filing a complaint
with the court" and that, absent a properly-filed
complaint, a federal district court lacks jurisdiction to
consider requests for equitable relief. Id. at 2
(citations omitted). Accordingly, the R&R explained,
because Plaintiff initiated this suit in December of 2016
with a motion for preliminary injunction and TRO but no
complaint, this action was subject to dismissal without
prejudice from the outset for lack of jurisdiction.
Id. Further, the R&R explained that the Court
would likely have granted Plaintiff an opportunity to cure
the defect by filing a complaint, had it been clear at the
outset that ECF No. 4 was a motion rather than a complaint.
Id. But, the R&R continued, Plaintiffs motion to
clarify, ECF No. 20, makes clear that Plaintiff had not
exhausted his administrative remedies at the time he filed
his motion for preliminary injunction and TRO. Id.
Thus, the R&R concluded, any complaint that Plaintiff
would have filed in an effort to cure his defect of failing
to open this case with a complaint would have itself been
subject to dismissal without prejudice for failure to exhaust
administrative remedies. Id. Therefore, the R&R
concluded that because the case was subject to dismissal
without prejudice whether or not Plaintiff would have been
permitted to file a complaint at the outset of the case, it
had no choice but to recommend the Court dismiss the case
without prejudice. Id. at 3. Plaintiff timely
Judge Vascura issued the R&R pursuant to Federal Rule of
Civil Procedure 72(b). Under that rule, the Undersigned must
determine de novo 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.
contends in his objection that Federal Rule of Civil
Procedure 3 does not apply to his initial motion for
preliminary injunction and TRO because that motion was filed
pursuant to Federal Rule of Civil Procedure 65 (which governs
injunctions and restraining orders). Obj. 2, ECF No. 4.
Plaintiff construes the R&R as holding that Plaintiff
should have filed a complaint before filing his motion for
preliminary injunction and TRO and states that "this
doesn't seem correct." Obj. 3, ECF No. 4. He
contends the Court has jurisdiction over this case based on
the location of the alleged constitutional violation.
objection is not well taken. The R&R correctly explained
that every lawsuit must be initiated by the filing of a
complaint. Fed.R.Civ.P. 3. This is true even where a
plaintiff seeks equitable relief such as through a motion for
a preliminary injunction or TRO. See, e.g., Powell v.
Rios, 241 Fed.Appx. 500, 505 n.4 ("Absent a
properly-filed complaint, a court lacks power to issue
preliminary injunctive relief." (citations omitted)).
Moreover, Plaintiff cannot file a complaint in this case
until he has exhausted his administrative remedies with
respect to the subject of the complaint. 42 U.S.C. §
contention that the Court has jurisdiction over this case due
to the location of the injury confuses the concept of
jurisdiction with that of venue. That an injury occurred in
the Southern District of Ohio does not itself confer
jurisdiction in this Court.
Plaintiff references Southern District of Ohio Local Rule 65.
That rule's requirement that motions for preliminary
injunctions or TROs be made in pleadings separate from the
complaint does not change the fact that a civil action is
commenced with the filing of a complaint. It simply further
directs that any plaintiff who has initiated a case through
the proper filing of a complaint may move for a preliminary
injunction or TRO only by then filing a separate motion and
may not include the requests for preliminary injunction or
TRO as part of the complaint. S.D. Ohio Local R. 65(b).
Plaintiffs objection is therefore OVERRULED.
bottom, Plaintiff attempted to initiate this lawsuit with the
filing of only a motion, which is insufficient. Fed.R.Civ.P.
3. Moreover, he has made clear that, as of the initiation of
the suit, he had not exhausted his administrative remedies.
Mot. Clarify, ECF No. 20. Accordingly, the Court lacked
jurisdiction at the time this suit was initiated, even if
Plaintiff had filed a complaint at that time. Accordingly,
the Court ADOPTS the R&R,
GRANTS Plaintiffs motion to clarify, ECF No. 20, and
DISMISSES THIS CASE WITHOUT PREJUDICE.
However, the Court concludes that, had Plaintiff's motion
for preliminary injunction and TRO been properly docketed as
such, this case would have likely been dismissed for the
reasons addressed above prior to the assessment of any filing
fee. Accordingly, the Court exercises its discretion and
WAIVES the remainder of any filing fee due
in this case. Moreover, if Plaintiff chooses to
re-file a separate case, any payments made heretofore on the
filing fee assessed in Case No. 2:17-cv-64 shall be applied
to any filing fee eventually assessed in the separate case.
Plaintiff is further DIRECTED to identify
this action as a related case in any new action based on the
events alleged in the document that he filed as ECF No. 15 in