IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

Benjamin Hendricks, :

 Plaintiff, : Case No. 2:11-cv-399

 v. : JUDGE MICHAEL H. WATSON

 Magistrate Judge Kemp

Ms. Wessell, et al., :

 Defendants. :

REPORT AND RECOMMENDATION

This matter is before the Court to consider the motion for

summary judgment filed by defendant Jeffrey Norman Hazzard. The

motion has been fully briefed. For the following reasons, it

will be recommended that the motion for summary judgment be

granted in part and denied in part.

I. Background

Plaintiff Benjamin Hendricks filed an amended complaint in

this matter on April 19, 2012. For purposes of the current

motion, Mr. Hendricks asserts claims against Mr. Hazzard under 42

U.S.C. §1983 for excessive use of force and retaliatory

destruction of his legal materials in violation of Mr. Hendricks’

constitutional rights. According to the amended complaint, on

January 15, 2010, Mr. Hazzard, after being told Mr. Hendricks had

a shoulder implant in his left arm, grabbed Mr. Hendricks by that

arm and “threw” Mr. Hendricks into a holding cell causing a

“popping” sound and “extreme” pain. Eventually, it was

determined that the implant had become loose and surgery was

recommended. The amended complaint further alleges that on June

18, 2010, Mr. Hazzard destroyed Mr. Hendricks’ legal materials

relating to this case and another case Mr. Hendricks subsequently

filed in this Court. The amended complaint also contains

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generalized allegations of Mr. Hendricks’ harassment by Mr.

Hazzard continuing on some level through April, 2012, even after

Mr. Hendricks received a favorable disposition on the issue when

he pursued it through the administrative grievance process.

By way of further background, the amended complaint,

consistent with this Court’s previous order granting Mr. Hazzard

leave to file, also names as defendants several current or former

officials at the Pickaway Correctional Institution including Gene

Wessell, Deputy Warden; Carole Crockett-Harris, Unit Manager

Administrator/ADA Coordinator; Mary Lawrence, Inspector of

Institutional Services; and Roger Roddy, Deputy Warden. The

amended complaint also names as defendants Ernie Moore, the

former Director of the Ohio Department of Rehabilitation and

Corrections and Gary Mohr, the current ODRC Director. All of

these defendants, with the exception of Mr. Hazzard, are sued

only in their official capacities and some of Mr. Hendricks’

claims against them are the subject of a separate motion to

dismiss. 

In the current motion, Mr. Hazzard has moved for summary

judgment on the ground that Mr. Hendricks has not exhausted his

administrative remedies as required by the Prison Litigation

Reform Act and, therefore, Mr. Hazzard is entitled to judgment as

a matter of law. In support of his motion, Mr. Hazzard has

submitted a declaration from Ms. Lawrence which includes as

exhibits various documents relating to Mr. Hendricks’ use of the

administrative grievance process. Mr. Hendricks has responded to

this motion and submitted a declaration which he signed under

penalty of perjury pursuant to 28 U.S.C. §1746. He also has

attached several documents relating to his use of the

administrative grievance process. Mr. Hazzard has filed a reply

supported by a second declaration from Ms. Lawrence. 

II. The Motion for Summary Judgment

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In his motion for summary judgment, Mr. Hazzard asserts

that, with respect to the specific incidents identified in the

amended complaint - an alleged excessive use of force incident in

January 2010, and a destruction of legal materials incident in

June, 2010 - any claims are unexhausted because Mr. Hendricks

began the grievance process by filing informal complaints but did

not pursue the claims past that level. Further, with respect to

the more general allegations of harassment set out in the

complaint, Mr. Hazzard contends that any claim arising from them

has not been exhausted because Mr. Hendricks did not pursue any

administrative remedies until after the filing of this action. 

The declaration of Ms. Lawrence submitted by Mr. Hazzard

states the following. According to Mr. Hendricks’ grievance

file, since January 2009, he has filed over 100 informal

complaints, twenty formal grievances, and ten appeals as well as

five direct grievances against either a prison warden or

institutional inspector. Between January 2010 and June 2011, Mr.

Hendricks filed three informal complaints and one formal

complaint against Mr. Hazzard. Lawrence Declaration at ¶8. Mr.

Hendricks has never filed an appeal of a formal grievance against

Mr. Hazzard with the Chief Inspector’s Office. Id. In April,

2011, Mr. Hendricks filed an informal complaint against Mr.

Hazzard regarding incidents of harassment and, when he did not

receive a timely response, he submitted a formal complaint. Id.,

at ¶9. This grievance was granted and Mr. Hendricks did not file

an appeal. Id. Copies of three informal complaints dated June

19, 2010, January 13, 2011, and April 21, 2011, the formal

grievance filed May 15, 2011, and corresponding responses are

attached to her declaration.

In response, Mr. Hendricks argues that his verified

complaint and the declaration and exhibits attached to his

response contradict Ms. Lawrence’s declaration and demonstrate

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the “apparent complete disarray” of the record keeping system in

place at Pickaway. Further, Mr. Hendricks contends that Ms.

Lawrence and her predecessor denied his requests for grievance

forms and that he grieved this failure. This denial of grievance

forms, according to Mr. Hendricks, should excuse his failure to

exhaust administrative remedies because it rendered the grievance

system unavailable to him. 

 With respect to the allegations in the amended complaint

regarding the incident in January, 2010, Mr. Hendricks’

declaration and the attachments set forth the following. On

February 22, 2010, he filed an informal complaint with Lt.

Kenneth Black. Hendricks Declaration ¶5. Although the copy of

this informal complaint attached to the response is of very poor

quality, it does appear that this document relates to the alleged

treatment by Mr. Hazzard received by Mr. Hendricks upon his

arrival in the segregation unit in January, 2010, as set forth in

the amended complaint. Exhibit A to Hendricks Declaration. On

March 19, 2010, Mr. Hendricks filed an informal complaint with

Ms. Wessell. The copy of this complaint attached to the motion,

also of very poor quality, appears to relate to an incident on

March 19, 2010 involving the locking of inmate doors by Mr.

Hazzard, and to request a separation from Mr. Hazzard. Exhibit C

to Hendricks Declaration. According to Mr. Hendricks’

declaration, in April, 2010, he filed a notification of grievance

with the Chief Inspector of Institutional Services. Hendricks

Declaration ¶8. Mr. Hazzard has not attached a copy of this

document to his declaration. 

With respect to the alleged destruction of Mr. Hendricks’

legal materials in June, 2010, his declaration states that he

filed an informal complaint with Ms. Crockett-Harris on June 19,

2010, but this complaint was ignored and his request for a

notification of grievance form was denied. Hendricks Declaration

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¶9. A copy of this complaint is attached to Mr. Hendricks’

declaration as Exhibit D. This complaint references Mr.

Hazzard’s alleged retaliatory destruction of Mr. Hendricks’

property and legal materials as set forth in the amended

complaint. Mr. Hendricks further states that he filed an

informal complaint with Ms. Lawrence on June 22, 2010 about Mr.

Hazzard’s alleged retaliatory behavior. Hendricks Declaration

¶10. The contents of this document are mostly illegible. This

complaint also was ignored and Mr. Hendricks received no response

to his request for a notification of grievance form. Id.

On July 18, 2010, Mr. Hendricks was transferred to the

Belmont Correctional Institution for a month. Hendricks

Declaration, ¶11. When Mr. Hendricks returned to Pickaway, Mr.

Hazzard continued the alleged harassment. Id. at ¶12. Mr.

Hendricks sent a kite to Ms. Lawrence which he has attached to

his declaration as Exhibit F. In this document, he references

Mr. Hazzard’s behavior and requests a “legal kit” and

notification of grievance form. This document was returned to

him without a response. Hendricks Declaration ¶12. On November

15, 2010, Mr. Hendricks filed, with the Chief Inspector’s Office,

a notification of grievance by utilizing an informal complaint

form. Id. at ¶13, Exhibit G. In December, 2010, Mr. Hendricks

filed a letter with defendant Moore’s office. Id. at ¶14,

Exhibit H. On January 13, 2011, Mr. Hendricks filed an informal

complaint with Warden Brian Cook. Id. at ¶17, Exhibit J. When

Mr. Hendricks did not receive an answer from Warden Cook, he

proceeded to request a notification of grievance form from Ms.

Lawrence and filed an appeal with the Chief Inspector. Id. at

¶18, ¶19, Exhibits K and L. On March 18, 2011, he received a

notice that the Chief Inspector would not address the merits of

his complaint without a notification of grievance and a

disposition of grievance being submitted. Id. at ¶20. 

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With respect to the more general allegations of harassment

by Mr. Hazzard set forth in the amended complaint, Mr. Hendricks’

declaration states that he filed an informal complaint on April

21, 2011, and notifications of grievance on May 2 and May 15,

2011. Hendricks Declaration ¶¶21-25, Exhibits N, O, and Q. Mr.

Hendricks also has attached to his response declarations from

four inmates attesting to his problems with Mr. Hazzard. Id. at

¶¶26-29, Exhibits R, S, T, and U. Finally, Mr. Hendricks states

that he has complained at least three times to the Chief

Inspector regarding issues with the grievance process at

Pickaway, one of which was followed up by a meeting. Id. at

¶¶30-31. 

In reply, Mr. Hazzard contends that none of the evidence in

support of Mr. Hendricks’ response raises a genuine issue of

material fact as to whether Mr. Hendricks properly exhausted his

administrative remedies. According to Mr. Hazzard, whether Mr.

Hendricks filed six informal complaints and one formal complaint

(as Mr. Hendricks contends) or three informal complaints and one

formal complaint (as Mr. Hazzard contends), there is no dispute

that Mr. Hendricks failed to complete all three steps of the

grievance process and, therefore, has not exhausted his

administrative remedies. 

III. Summary Judgment Standard

 Summary judgment is not a substitute for a trial when

facts material to the Court's ultimate resolution of the case

are in dispute. It may be rendered only when appropriate

evidentiary materials, as described in Fed. R. Civ. P. 56(c),

demonstrate the absence of a material factual dispute and the

moving party is entitled to judgment as a matter of law.

Poller v. Columbia Broadcasting Systems, Inc., 368 U.S. 464

(1962). The moving party bears the burden of demonstrating

that no material facts are in dispute, and the evidence

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submitted must be viewed in the light most favorable to the

nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144

(1970). Additionally, the Court must draw all reasonable

inferences from that evidence in favor of the nonmoving

party. United States v. Diebold, Inc., 369 U.S. 654 (1962).

The nonmoving party does have the burden, however, after

completion of sufficient discovery, to submit evidence in

support of any material element of a claim or defense on

which that party would bear the burden of proof at trial,

even if the moving party has not submitted evidence to negate

the existence of that material fact. See Celotex Corp. v.

Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242 (1986). Of course, since "a party seeking

summary judgment ... bears the initial responsibility of

informing the district court of the basis for its motion, and

identifying those portions of [the record] which it believes

demonstrate the absence of a genuine issue of material fact," 

Celotex, 477 U.S. at 323, the responding party is only required

to respond to those issues clearly identified by the moving party

as being subject to the motion. It is with these standards in

mind that the instant motion must be decided.

IV. Analysis

Ohio has established a procedure for resolving inmate

complaints. Ohio Admin. Code § 5120–9–31. To properly exhaust a

claim seeking relief “regarding any aspect of institutional life

that directly and personally affects the [inmate],” an inmate at

ODRC must comply with its three-step grievance system. Ohio

Admin. Code § 5120–9–31(K). For the first step, the inmate must

submit an informal complaint to the staff member or to the direct

supervisor of the staff member or to the department most directly

responsible over the subject matter with which the inmate is

concerned. Ohio Admin. Code § 5120–9–31(K)(1). Such action must

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be taken “[w]ithin fourteen calendar days of the date of the

event giving rise to the complaint ....” Id. If the inmate is

not satisfied with the results, he may take the second step by

filing a formal grievance with the inspector of institutional

services at the prison where he is confined. Ohio Admin. Code §

5120–9–31(K)(2). That inspector will investigate the matter and

issue a written response to the inmate's grievance within

fourteen calendar days of receipt. Id. If the inmate is still

dissatisfied, he may pursue the third step, which is an appeal to

the office of the Chief Inspector of ODRC. Ohio Admin. Code §

5120–9–31(K)(3). This appeal must be filed within fourteen days

of the disposition of the formal grievance. Id. All inmates in

the custody of ODRC receive both written and oral instructions on

how to use the grievance system, including instructions on

appeals to the Chief Inspector's office and how to file direct

grievances to that office, as required by Ohio Admin. Code §

5120–9–31(C).

With respect to the incident of January 15, 2010, there is

no question that Mr. Hendricks did not exhaust his administrative

remedies. Based on the record, it appears that he filed only an

informal complaint with Lt. Black on February 22, 2010. Mr.

Hendricks states in his declaration that Lt. Black forwarded this

complaint on to the Acting Inspector of Institutional Services. 

This is the only action taken by Mr. Hendricks with respect to

the January 15, 2010 incident until he filed another informal

complaint on January 13, 2011, with Warden Brian Cook. Because

nearly a year had passed since the event, Warden Cook declined to

take any action on the complaint. The filing of this second

formal complaint with the Warden nearly a year after the incident

is not consistent with the provisions of Ohio’s three-step

grievance system set forth above. Consequently, any actions

taken by Mr. Hendricks after that date - even to the extent that

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Mr. Hendricks styled them as his “final step in the PLRA

exhaustion requirement” - do not raise a genuine issue of

material fact as to whether he properly exhausted his

administrative remedies as to his use of force claim arising from

an incident in January, 2010. 

Further, to the extent that Mr. Hendricks contends that the

informal complaint he filed with Ms. Wessell on March 19, 2010,

serves as another step in the exhaustion of his use of force

claim, he is mistaken. The informal complaint dated March 19,

2010 relates to an incident on that date involving the locking of

inmates’ doors by Mr. Hazzard. While Mr. Hendricks does mention

another informal complaint he filed against Mr. Hazzard as a

possible motive for Mr. Hazzard’s decision to lock inmates’

doors, this document cannot be found to raise any genuine issue

of material fact regarding Mr. Hendricks’ exhaustion of his

administrative remedies relating to his excessive use of force

claim. Similarly, if, as Mr. Hendricks claims, he filed a

notification of grievance in April, 2010 with the Chief Inspector

about the inspector of institutional services and the grievance

process, again this does not serve to create a genuine issue of

material fact as to whether he properly exhausted his

administrative remedies with respect to his use of force claim

against Mr. Hazzard arising from the incident on January 15,

2010. In short there is no evidence in the record which would

allow the trier of fact to conclude that Mr. Hendricks pursued

the grievance process through the final level of appeal with

respect to his excessive use of force claim. Consequently, the

Court will recommend that summary judgment be entered in Mr.

Hazzard’s favor on this claim. 

However, with respect to his retaliatory destruction of his

legal materials claim involving the events of June 18, 2010, the

Court finds that Mr. Hendricks has provided evidence sufficient

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to raise a genuine issue of material fact. According to his

declaration, Mr. Hendricks asserts that he filed an informal

complaint about this incident with Ms. Crockett-Harris on June

19, 2010, and with Ms. Lawrence on June 22, 2010. He maintains

that these complaints were ignored as were his requests for

notification of grievance forms. 

While, as Mr. Hazzard contends, there is no question that

filing an informal complaint with Ms. Lawrence, the institutional

inspector, was not the proper first step in the grievance

process, the issue is not so clear with respect to Ms. CrockettHarris. In his reply, Mr. Hazzard does not address directly the

issue of the informal complaint filed with Ms. Crockett-Harris

and whether the filing of that complaint satisfied the first step

in the grievance process. Instead, he limits his discussion

specifically to Ms. Lawrence and submits an additional

declaration from her only. In her second declaration, Ms.

Lawrence states that she found no requests for formal complaints

from Mr. Hendricks for the month of June, 2010, indicating his

failure to pursue the second step of the grievance process for

this claim. See Lawrence Declaration, Doc. #55-1, ¶¶4 and 5. 

 Further, Mr. Hazzard appears to argue that the statement in

Mr. Hendricks’ unsworn declaration relating to the filing of

informal complaints (which presumably includes the one he filed

with Ms. Crockett-Harris) and the statement that he did not

receive requested grievance forms are insufficient to raise a

genuine issue of material fact. Based on the record as it

currently stands, the Court does not agree.

First, to the extent that Mr. Hazzard may be suggesting that

Mr. Hendricks’ unsworn declaration does not constitute sufficient

evidentiary material for this Court’s consideration, he is

mistaken. As noted above, Mr. Hendricks specifically stated in

his declaration that it was made under penalty of perjury

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pursuant to 28 U.S.C. §1746. That statute provides that “unsworn

declarations under penalty of perjury” may be used with the same

force and effect to support, evidence, establish or prove any

matter that is required or permitted to be supported by

affidavit. Declarations executed within the United States must

substantially conform to the following language: “I declare (or

certify, verify, or state) under penalty of perjury that the

foregoing is true and correct. Executed on (date).” 28 U.S.C.

§1746(2). Mr. Hendricks states the following on page one of his

declaration: “I, Benjamin Hendricks, the Plaintiff in the above

captioned case, pursuant to 28 U.S.C. § 1746, makes this unsworn

declaration under penalty of perjury and declare that the

statements below are true and accurate[.]” This declaration

bears Mr. Hendricks’ signature and the date of its execution of

May 21, 2012. Based upon this review, the Court concludes that

this declaration substantially comports with the requirements of

§1746 and that it is, therefore, sufficient for the purposes of

Fed.R.Civ.P. 56. 

As a result, the state of the record with respect to Mr.

Hendricks’ exhaustion of his claim arising from the alleged

retaliatory destruction of his legal materials can be summarized

as follows. Mr. Hendricks states that he pursued the first step

of the grievance process by filing an informal complaint with Ms.

Crockett-Harris as well as with Ms. Lawrence. While Mr. Hazzard

correctly asserts that filing with Ms. Lawrence was improper, he

does not argue that Mr. Hendricks’ filing of an informal

complaint with Ms. Crockett-Harris failed to satisfy the first

step. Mr. Hendricks has submitted appropriate evidentiary

material to the Court stating that he requested notification of

grievance forms to pursue the second step of the grievance

process with respect to the alleged destruction of his legal

materials and that his requests were denied. Mr. Hazzard has

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submitted an affidavit from Ms. Lawrence stating that she has no

record of Mr. Hendricks’ requests for formal grievance forms in

June, 2010. Construing this evidence in the light most favorable

to Mr. Hendricks, however, as the Court is required to do at the

summary judgment stage, a genuine issue of material fact exists

as to whether Mr. Hendricks can be found to have exhausted fully

his administrative remedies with respect to this claim. 

As this Court explained in Brown v. Blackwell, Case No.

2:10-cv-966, 2011 WL 63595, *2 (S.D. Ohio January 6, 2011),

The exhaustion provision of the Prison Litigation

Reform Act, 42 U.S.C. § 1997e(a), provides that “[n]o

action shall be brought with respect to prison

conditions under section 1983 of this title, or any

other Federal law, by a prisoner confined in any jail,

prison, or other correctional facility until such

administrative remedies as are available are

exhausted.” The use of the phrase “as are available”

implies that if the prison has taken action to make its

administrative remedies unavailable, the prisoner has

no obligation to pursue them. In other words, as this

Court has held, a prisoner need not use prison remedies

which are not “‘reasonably available.’” Williams v.

Hurley, 2007 WL 1202723, *3 (S.D. Ohio April 23, 2007)

(Watson, J.), quoting Pack v. Martin, 174 Fed. Appx.

256, 262 (6th Cir. March 27, 2006); see also Little v.

Jones, 607 F.3d 1245, 1250 (10th Cir. 2010)) (“Where

prison officials prevent, thwart, or hinder a

prisoner's efforts to avail himself of an

administrative remedy, they render that remedy

‘unavailable’ and a court will excuse the prisoner's

failure to exhaust”).

If Mr. Hendricks’ allegation is true, it may excuse his

failure to follow the grievance process to its final conclusion

(assuming that Pickaway, and not Mr. Hendricks, caused the

process to short-circuit). This circumstance would allow Mr.

Hendricks to litigate the issue of the alleged retaliatory

destruction of his legal materials without a final decision from

Pickaway. On the other hand, if Mr. Hendricks is unable to show,

as a matter of fact, that it was Pickaway which thwarted his good

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faith efforts to exhaust available prison remedies as to his

claim regarding the destruction of his legal materials, the Court

will be required to dismiss the case under § 1997e(a). See,

e.g., Singh v. Goord, 520 F.Supp.2d 487 (S.D.N.Y. 2007). 

Consequently, the Court will recommend that the motion for

summary judgment be denied as to Mr. Hendricks’ claim regarding

the alleged retaliatory destruction of his legal materials. 

In reaching this conclusion, the Court notes that it finds

Mr. Hazzard’s suggestion that Mr. Hendricks did not offer enough

details in his declaration to defeat the motion for summary

judgment to be without merit. In making this argument, Mr.

Hazzard relies on Clark v. Walgreen Co., 424 Fed. Appx. 467, 471-

72 (6th Cir. 2011), and its discussion of the summary judgment

standard generally. While the Court recognizes that conclusory

statements unsupported by specific facts will not permit a party

to survive summary judgment, see Lewis v. Philip Morris, Inc.,

355 F.3d 515, 533 (6th Cir. 2004), Mr. Hendricks has provided

enough specificity, as set forth above, to satisfy his burden in

this case. 

With respect to the general allegations of harassment set

out in the amended complaint involving events in April and May,

2011, to the extent that Mr. Hendricks intends them as a specific

claim or as the basis for a separate retaliation claim, Mr.

Hazzard makes two arguments in support of summary judgment in his

favor. First, he argues that, because these allegations relate

to incidents which occurred after the filing of the original

complaint, Mr. Hendricks could not have exhausted any claim

before filing this action. In support of this position, Mr.

Hazzard cites to Hopkins v. Ohio Dept. of Corrections, 84 Fed.

Appx. 526 (6th Cir. 2003) for the general proposition set forth

in Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999), that

exhaustion may not be completed after a federal complaint has

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been filed. Mr. Hazzard also argues that this claim of general

harassment is unexhausted because Mr. Hendricks failed to

complete the full administrative process, having pursued his

claim only through the formal grievance level. 

As the Court reads Mr. Hendricks’ amended complaint, he is

not asserting a separate claim based specifically on the

incidents in April and May, 2011. He clearly states in both his

amended complaint and his declaration that he grieved these

incidents and was granted a favorable disposition. While he

states in his amended complaint that Mr. Hazzard continued to

harass him after the grievance was resolved, he states in his

declaration that “[t]he problem seemed to have been solved with

the exception of childish incidents by Defendant Hazzard such as

a middle finger every now and then.” He does not assert, in

either his amended complaint or his declaration, that he pursued

the grievance process again with respect to these 2011 incidents

after the favorable resolution even if he perceived that Mr.

Hazzard’s alleged conduct was not totally corrected. Under this

circumstance, there is no issue of exhaustion relating to these

incidents to be addressed by the Court. Rather, as the Court

reads Mr. Hendricks’ complaint and declaration, the allegations

surrounding the incidents in April and May, 2011, appear to be

background information presumably designed to provide some 

context for Mr. Hendricks’ filing of a notification of grievance

addressed to Mr. Hazzard’s behavior in April, 2012. In his

motion for summary judgment, Mr. Hazzard does not address the

issue of exhaustion as it relates specifically to any claim of

harassment or retaliation arising in April, 2012. However, the

arguments he sets forth with respect to Mr. Hendricks’ claim

regarding Mr. Hazzard’s alleged behavior in April and May, 2011,

apply more directly to the claim regarding his alleged behavior

in April, 2012. 

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According to his declaration, Mr. Hendricks filed a

notification of grievance with Ms. Lawrence on May 2, 2012. As

discussed above, this is the second stage of Ohio’s

administrative grievance process and Mr. Hendricks provides no

evidence from which a trier of fact could conclude that he

pursued the first step of the process. As a result, in filing

his amended complaint, Mr. Hendricks included a claim, whether

for harassment or retaliation, that was not exhausted properly. 

As the Sixth Circuit has made clear, exhaustion cannot be

completed after a federal complaint has been filed. Freeman, 196

F.3d at 645. Consequently, the Court will recommend that the

motion for summary judgment be granted as to Mr. Hendricks’ claim

of harassment or retaliation by Mr. Hazzard in April, 2012. 

Finally, the Court notes that Mr. Hendricks has filed a

motion for leave to file a sur-reply, to file a motion to strike

Mr. Hazzard’s reply and to request sanctions under Rule 11. 

According to this motion, Mr. Hazzard’s reply and Ms. Lawrence’s

declaration attached to it are filled with false or misleading

information. Mr. Hendricks requests that Mr. Hazzard withdraw

the reply and declaration by July 6, 2012. In the event Mr.

Hazzard does not so withdraw, Mr. Hendricks requests the ability

to file his requested sur-reply and motions by July 15, 2012. 

Mr. Hazzard has responded asserting that Mr. Hendricks has failed

to show good cause for the filing of a sur-reply and that he has

misapprehended the purpose of the safe harbor provision of

Fed.R.Civ.P. 11. Mr. Hendricks has not filed a reply nor has he

filed his sur-reply and motions by his stated deadline of July

15, 2012. 

To the extent that Mr. Hendricks seeks leave to file a surreply, the Court will deny the motion because Mr. Hendricks has

not established good cause for its filing. Mr. Hendricks has

neither attached a copy of his proposed sur-reply to his motion

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for leave for the Court’s review nor has he even argued that Mr.

Hazzard’s reply raised new grounds not presented in his initial

summary judgment motion as generally required to support the

filing of a sur-reply. See Comtide Holdings, LLC v. Booth Creek

Management Corp., Case No. 2:07-cv-1190, 2010 WL 4117552 (S.D.

Ohio October 19, 2010). With respect to the remaining issues

raised by Mr. Hendricks’ motion, the Court does not construe the

motion as currently framed as requesting either that Ms.

Lawrence’s declaration be stricken or that Rule 11 sanctions be

awarded and, therefore, the Court will not address those issues.

V. Conclusion

For the reasons stated above, it is recommended that the

motion for summary judgment (#49) be granted as it relates to the

excessive use of force claim arising from the January 15, 2010

incident and the harassment or retaliation claim arising in

April, 2012. Further, it is recommended that the motion for

summary judgment be denied as it relates to the retaliation claim

arising from the events of June 18, 2010. Further, the motion

for leave to file a sur-reply (#56) is denied.

 PROCEDURE ON OBJECTIONS

 If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge

of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

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17

 The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

 

 

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