The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MICHAEL L. JOHNSON, Case No. 1:20-cv-157
Plaintiff,
McFarland, J.
vs. Litkovitz, M.J.
BRYAN LAWLESS, ORDER AND REPORT AND
Defendant. RECOMMENDATION
Plaintiff, an inmate at the Toledo Correctional Institution, filed this pro se civil rights
complaint pursuant to 42 U.S.C. § 1983 alleging violations of his First and Eighth Amendment
rights while incarcerated at the Southern Ohio Correctional Facility (SOCF).1 Plaintiff alleges
that defendant used excessive force against him during a cell search pat down and retaliated
against him for filing grievances and lawsuits against corrections officers.
On April 30, 2021, the defendant filed a motion for summary judgment (Doc. 62). In
previously considering defendant’s motion for summary judgment, the Court concluded that it
lacked the evidence necessary to recommend resolution of defendant’s motion. (Doc. 84). As
the Court explained, the defendant attached to his motion documents that purport to be use of
force reports, rules infraction board records, and grievance records, but he failed to provide any
affidavits or declarations authenticating or explaining the documents or their origin. Similarly,
defendant provided neither deposition testimony, sworn statements of any kind, or the video
recording of the cell search in question to which both parties referred in their briefs. Even the
responses to plaintiff’s interrogatories and requests for admission—as pro se plaintiff noted—are
1 Plaintiff’s remaining claims were dismissed on sua sponte screening of the complaint pursuant to sections 804 and
805 of the Prison Litigation Reform Act, 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). (Doc. 9).
unsigned and unverified.2 For the Court to consider such information, it must be submitted
properly as evidence.
Accordingly, on January 24, 2022, the Court ordered the following: (1) Defendant must
submit signed, verified responses to plaintiff’s interrogatories and requests for admission and
submit the same to both plaintiff and the Court no later than fifteen (15) days from the date of
this Order; (2) Defendant must submit the video evidence referenced by both parties in their
briefs no later than fifteen (15) days from the date of this Order; and (3) Both parties are granted
leave to file supplemental evidence no later than fifteen (15) days from the date of this Order.
(Doc. 84 at PAGEID 955). Despite the February 8, 2022 filing deadline, the defendant has filed
nothing whatsoever. Plaintiff failed to file supplemental evidence, but he did file a motion to
strike defendant’s reply memorandum in support of the motion for summary judgment (Doc. 86).
Because the defendant failed to comply with the Court’s January 24, 2022 Order, the
Court must recommend that the defendant’s motion for summary judgment be denied. Plaintiff’s
motion to strike the defendant’s reply memorandum will be denied as moot and because plaintiff
failed to comply with the Court’s earlier order that he double-space his handwritten documents
as required by local rule 5.1(a) to increase legibility. (Doc. 85 at PAGEID 956).
IT IS THEREFORE ORDERED THAT:
Plaintiff’s motion to strike (Doc. 86) is DENIED.
2 On December 17, 2020, defendant’s counsel assured the Court that the unsigned, unverified documents were a
temporary placeholder due to defendant’s covid-19-related quarantine and defendant would “endeavor to sign the
documents and have them notarized as soon as possible.” (Doc. 45 at PAGEID 219). Yet, he failed to do so.
IT IS THEREFORE RECOMMENDED THAT:
Defendant’s motion for summary judgment (Doc. 62) be DENIED WITHOUT
PREJUDICE for failure to comply with the Court’s January 24, 2022 Order requiring the filing
of supplemental evidence. The defendant may file a new motion for summary judgment once he
complies with the Court’s January 24, 2022 Order.
Date: 2/16/2022 Horn K Kethov
Karen L. Litkovitz
United States Magistrate Judge
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MICHAEL L. JOHNSON, Case No. 1:20-cv-157
Plaintiff,
McFarland, J.
vs. Litkovitz, M.J.
BRYAN LAWLESS,
Defendant.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).