Walker v. Ohio Dep't of Rehab. & Corr.

PATRICK E. SHEERAN JUDGE

Sent to S.C. Reporter 6/2/23

Gary Peterson Magistrate

DECISION

PATRICK E. SHEERAN JUDGE

{¶1} On February 10, 2023, Defendant filed a motion for summary judgment pursuant to Civ.R. 56(B). On March 13, 2023, Plaintiff filed a memorandum in opposition. Defendant did not file a reply. The motion is now before the Court for a non-oral hearing pursuant to L.C.C.R. 4(D). For the reasons stated below, Defendant's motion is GRANTED.

Standard of Review

{¶2} Motions for summary judgment are reviewed under the standard set forth in Civ.R. 56(C), which states, in part:

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule.

"[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court which demonstrate the absence of a genuine issue of material fact on a material element of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). To meet this initial burden, the moving party must be able to point to evidentiary materials of the type listed in Civ.R. 56(C). Id. at 292-293.

{¶3} If the moving party meets its initial burden, the nonmoving party bears a reciprocal burden outlined in Civ.R. 56(E), which provides that "an adverse party may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." It is well-established that it is not appropriate to grant summary judgment unless, construing the evidence most strongly in favor of the nonmoving party:

(1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, that conclusion being adverse to the nonmoving party.

Robinette v. Orthopedics, Inc., 10th Dist. Franklin No. 97AP-1299, 1999 Ohio App. LEXIS 2038, 7 (1999).

Procedural Background

{¶4} According to the amended complaint, Plaintiff is an inmate in the custody and control of Defendant, the Ohio Department of Rehabilitation and Correction (ODRC). Plaintiff's amended complaint raises 14 counts of defamation, false light invasion of privacy and abuse of process. Plaintiff's claims arise out of a variety of interactions with employees of Defendant whereupon various conduct reports were written accusing Plaintiff of ODRC rule violations. The Court previously dismissed counts 1, 2, 4, 5, 13, and 14. Thus, the only counts that remain are counts 3 and 6-12 for defamation and false light invasion of privacy. In counts 3 and 6, Plaintiff alleges that he was falsely accused of possession of a controlled substance by Jason Hall and corrections officer Reser in January 2021. In counts 7-12, Plaintiff alleges false light invasion of privacy with respect to conduct reports charging Plaintiff with possessing a contraband cell phone, impersonating another inmate, removing a light switch cover, failing to sign out for medical call, and possessing a controlled substance.

Facts

{¶5} The following facts are derived from the affidavits and documents attached to both Defendant's motion for summary judgment and Plaintiff's memorandum in opposition. The following conduct reports give rise to this case. On January 21, 2021, corrections officer Reser wrote that he found a cell phone and several sheets of what was believed to be K2/Toon with cut marks on the corners in Plaintiff's dresser drawers. ODRC_0005. On October 7, 2020, Rebecca Craft accused Plaintiff of impersonating another inmate, his twin brother who was also assigned to the Warren Correctional Institution (WCI), while Craft was attempting to render medical care and differentiate Plaintiff from his twin brother. ODRC_0012. On April 27, 2021, Plaintiff was accused in a conduct report of failing to sign out of the unit prior to proceeding to pill call, in violation of Defendant's internal rule. ODRC_0001. On April 2, 2021, Plaintiff was accused in a conduct report of removing a light switch cover, exposing the wires and was charged with a rule violation. ODRC_0003. On August 8, 2020, Plaintiff was accused in a conduct report of possession of a contraband cell phone. ODRC_0020.

{¶6} In January 2021, Plaintiff was incarcerated at WCI where Hall was working as an investigator. Jason Hall Affidavit ¶ 2, 4. Part of Hall's job duties include maintaining a log and producing a weekly report identifying and verifying all inmates' possession of contraband, particularly illegal drugs or intoxicants. Hall at ¶ 5. Hall is familiar with the conduct report relating to Plaintiff's possession of K2 or toon on January 21, 2021. Hall at ¶ 3. K2 or toon is sheets of paper soaked in unknown chemicals or intoxicants. Hall at ¶ 6. Plaintiff asserts that K2 or toon is a controlled substance and a schedule I narcotic defined by Ohio and Federal law. Walker affidavit ¶ 7-8. Inmates cut off corners of the paper to eat or smoke. Hall at ¶ 6. Inmates usually receive K2 through the mail from persons outside the institution. Hall at ¶ 6. In Hall's experience, no test exists to identify K2 or toon, but rather, it is visually identified by discoloration of the paper or missing corners that have been cut off to be eaten or smoked. Hall at ¶ 7. Plaintiff disputes that K2 cannot be tested. Walker at ¶ 8-10.

{¶7} The weekly report for the week ending January 22, 2021, reflects that 14 sheets of K2 were confiscated from Plaintiff on January 21, 2021. Hall at ¶ 8. Hall avers that he never made any untrue statements, oral or written, about Plaintiff. Hall at ¶ 9. Hall further avers that any statements that he made about Plaintiff were made as a part of his official duties to investigate and document violations of Defendant's rules, which includes the possession of contraband, and in order to maintain the safety and security of WCI. Hall at ¶ 9. Hall further avers that he did not act with malicious purpose or in a reckless manner, but instead acted with the limited purpose of carrying out his duties. Hall at ¶ 10.

{¶8} Plaintiff maintains that WCI has a custom of emailing and posting conduct reports, as it did in this matter, so that other WCI employees can see the false defamatory statements made by Reser and Hall. Walker at ¶ 13.

{¶9} Regarding Plaintiff's claim of false light invasion of privacy, Plaintiff avers that the false statements about Plaintiff possessing two contraband cellular phones, impersonating another inmate, and possessing a controlled substance were made to a hearing officer, RIB chairman, RIB secretary, and warden designee. Walker at ¶ 14-16, 19. Plaintiff avers that false statements about removing a light switch cover and not signing out of the unit when he left for medical call were made to a hearing officer, RIB chairman, and warden designee. Walker at ¶ 17-18. Plaintiff maintains that he is highly offended by the publicity given to the false statements and believes that the publicity will affect his parole hearing in five years. Walker at ¶ 20-21.

{¶10} Norman Evans, a keeper of records for WCI, avers that all conduct reports are stored electronically on Defendant's DOTS portal and that only Defendant's employees may access the DOTS portal. Evans affidavit ¶ 2, 5. Defendant's employees are not permitted to access or disclose any DOTS records except as necessary to perform their job duties. Evans at ¶ 5. Conduct reports are not published beyond storage on the DOTS portal unless necessary in the ordinary course of business. Evans at ¶ 5. No public records requests have been made for Plaintiff's records or the records at issue in this case. Evans at ¶ 6.

Law and Analysis

{¶11} "In Ohio, defamation occurs when a publication contains a false statement 'made with some degree of fault, reflecting injuriously on a person's reputation, or exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business or profession.'" Jackson v. Columbus, 117 Ohio St.3d 328, 2008-Ohio-1041, 883 N.E.2d 1060, ¶ 9, quoting A & B-Abell Elevator Co., Inc. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 7, 651 N.E.2d 1283 (1995). "'Slander' refers to spoken defamatory words, while 'libel' refers to written or printed defamatory words." Schmidt v. Northcoast Behavioral Healthcare, 10th Dist. Franklin No. 10AP-565, 2011-Ohio-777, ¶ 8.

{¶12} "To succeed on a defamation claim, a plaintiff must establish: (1) a false statement, (2) about the plaintiff, (3) published without privilege to a third party, (4) with fault of at least negligence on the part of the defendant, and (5) the statement was either defamatory per se or caused special harm to the plaintiff." Watley v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 07AP-902, 2008-Ohio-3691, ¶ 26.

{¶13} "Under Ohio common law, actionable defamation falls into one of two categories: defamation per se or defamation per quod." Am. Chem. Soc. v. Leadscope, Inc., 10th Dist. Franklin No. 08AP-1026, 2010-Ohio-2725, ¶ 49.

In order to be actionable per se, the alleged defamatory statement must fit within one of four classes: (1) the words import a charge of an indictable offense involving moral turpitude or infamous punishment; (2) the words impute some offensive or contagious disease calculated to deprive a person of society; (3) the words tend to injure a person in his trade or occupation; and (4) in cases of libel only, the words tend to subject a person to public hatred, ridicule, or contempt.

Woods v. Capital Univ., 10th Dist. Franklin No. 09AP-166, 2009-Ohio-5672, ¶ 28.

On the other hand, a statement is defamatory per quod if it can reasonably have two meanings, one innocent and one defamatory. Therefore, when the words of a statement are not themselves, or per se, defamatory, but they are susceptible to a defamatory meaning, then they are defamatory per quod. Whether an unambiguous statement constitutes defamation per se is a question of law.

(Citations omitted.) Woods at ¶ 29.

{¶14} "If a claimant establishes a prima facie case of defamation, a defendant may then invoke a conditional or qualified privilege." Jackson at ¶ 9, citing A & B-Abell at 7, citing Hahn v. Kotten, 43 Ohio St. 2d 237, 243, 331 N.E.2d 713 (1975).

The purpose of a qualified privilege is to protect speakers in circumstances where there is a need for full and unrestricted communication concerning a matter in which the parties have an interest or duty. * * * A qualified privilege exists when a statement is: made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a right or duty, if made to a person having a corresponding interest or duty on a privileged occasion and in a manner and under circumstances fairly warranted by the occasion and duty, right or interest * * * Further, the essential elements of a communication protected by qualified privilege are: [1] good faith, [2] an interest to be upheld, [3] a statement limited in its scope to this purpose, [4] a proper occasion, and [5] publication made in a proper manner and to proper parties only.

(Internal citations omitted.) Mallory v. Ohio University, 10th Dist. Franklin No. 01AP-278, 2001 Ohio App. LEXIS 5720, * 21-22.

{¶15} "A qualified privilege may be defeated only by clear and convincing evidence of actual malice on the part of the defendant. Jacobs v. Frank, 60 Ohio St.3d 111, 114-115, 573 N.E.2d 609 (1991). 'Actual malice' is defined as 'acting with knowledge that the statements are false or acting with reckless disregard as to their truth or falsity.' Id., at 116." Watley at ¶ 32.

{¶16} "The phrase 'reckless disregard' applies when a publisher of defamatory statements acts with a 'high degree of awareness of their probable falsity' or when the publisher 'in fact entertained serious doubts as to the truth of his publication.' (Internal citations omitted.)" Hill v. Ohio Dept. of Rehab. & Corr ., 10th Dist. Franklin No. 20AP-88, 2021-Ohio-561, ¶ 19, citing Jackson v. Columbus, 117 Ohio St.3d 328, 2008-Ohio-1041, 883 N.E.2d 1060, ¶ 10. "It is not sufficient for a libel plaintiff to show that an interpretation of facts is false; rather, he must prove with convincing clarity that defendant was aware of the high probability of falsity." Watley at ¶ 33 (quotations omitted).

{¶17} "Evidence that establishes, at best, the publisher 'should have known' of the alleged falsity of the statement is insufficient to establish actual malice. Varanese v. Gall, 35 Ohio St.3d 78, 82, 518 N.E.2d 1177 (1988). '[M]ere negligence is constitutionally insufficient to show actual malice.' Id., citing St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 119, 413 N.E.2d 1187 (1980)." Hill at ¶ 19.

{¶18} With respect to Plaintiff's claim for defamation, Plaintiff claims that he was defamed when Hall and Reser accused him of possession of K2 or toon. Plaintiff disputes that the papers discovered in his cell are K2 or toon, but he does not dispute that discolored paper with torn edges was discovered in his cell. Thus, for the purposes of this decision only, the Court will assume that the papers were not K2 or toon. Accordingly, the Court assumes that a false statement was made about Plaintiff.

{¶19} Defendant argues that Plaintiff cannot establish unprivileged publication to a third-party with respect to the false statement. Indeed, Plaintiff is required to establish a genuine issue of material fact regarding the unprivileged publication to a third-party. Watley at ¶ 26. The evidence submitted by the parties establishes that the statement that Plaintiff possessed K2 was published to a hearing officer, RIB chairman, RIB secretary, and warden designee. Walker at ¶ 14-16, 19. The conduct report was also posted on Defendant's DOTS portal where it can be accessed by ODRC employees in the normal course of performing their job duties. While Defendant argues that internal publication cannot satisfy the unprivileged publication element, Defendant points to no legal authority to support that position. Although there is logic to Defendant's argument, in previous cases before the 10th District Court of Appeals, it appears that a conduct report or investigation report that is the subject of a RIB hearing has been deemed to be sufficient to satisfy the publication element of a claim for defamation. See Watley and Hill.

{¶20} Finally, the Court will assume that Plaintiff has established that the statements by both Hall and Reser were made with fault of at least negligence and that the statements are defamatory per se inasmuch as they import a charge of an indictable offense involving moral turpitude.

{¶21} Defendant next argues that the statements regarding K2 are subject to a qualified privilege. The evidence before the Court establishes that the statements regarding K2 were made after discovering the papers in Plaintiff's cell. Hall avers that he never made any untrue statements and has explained that identification of K2 is made upon visual inspection for discoloration of the paper and torn or ripped edges suggesting that the paper has been used to smoke or eat small portions of it. Defendant also established that the statements were made in order to maintain the safety and security of WCI. Accordingly, it has been shown that the statements were made in good faith with an interest to be upheld.

{¶22} It has also been established that the statements were limited in their scope inasmuch as the statements only report that the papers were discovered in Plaintiffs cell. The statements were also made on a proper occasion by writing them in a conduct report and in an investigation of the incident and subsequent grievance process. The statements were also only published to proper parties involved in the RIB process as shown by the exhibits to both parties' memoranda. Defendant posted the conduct report and associated documents to its internal DOTS portal system; however, it was shown that ODRC employees may only access the information as necessary to perform their job functions. Accordingly, Defendant has established the defense of qualified privilege.

{¶23} The burden now shifts to Plaintiff to demonstrate by clear and convincing evidence actual malice on the part of Defendant. Jacobs v. Frank, 60 Ohio St.3d 111, 114-115, 573 N.E.2d 609 (1991). Plaintiff argues that Defendant is incorrect that no test exists to identify K2. However, Plaintiff is required to demonstrate that Defendant acted with knowledge that the statements are false or acted with reckless disregard as to their truth or falsity. Watley at ¶ 32.

{¶24} There is nothing in the record to suggest that Defendant's method of identifying K2 is unreliable or reckless or stated differently, that the quality of the information that Hall and Reser relied upon was flawed such that it was reckless to conclude that the papers were K2. See Hill at ¶ 21. Hall averred that K2 can be identified by the discoloration of the pages of the paper and by the cut marks on the papers that indicate that small pieces of paper had been torn off to smoke or eat. This method of identifying K2 is unchallenged. Plaintiff has introduced evidence in his own affidavit identifying a method to test the papers to confirm that the papers are or are not K2. However, "[i]t is not sufficient for a libel plaintiff to show that an interpretation of facts is false; rather, he must prove with convincing clarity that defendant was aware of the high probability of falsity." Watley at ¶ 33 (quotations omitted). In other words, Plaintiff was required to show that Defendant's method of identifying K2 was so unreliable that it was reckless to conclude that the papers were K2 following a visual inspection.

{¶25} Plaintiff takes issue with Hall's statement that there is no test to confirm the presence of K2. While it may be true that the presence of K2 can be confirmed by a test, Plaintiff failed to put forth any evidence that Defendant's method of identifying K2 is reckless or unreliable such that Hall and Reser had serious doubts as to the truth of the publication. "Evidence that establishes, at best, the publisher 'should have known' of the alleged falsity of the statement is insufficient to establish actual malice. Varanese v. Gall, 35 Ohio St.3d 78, 82, 518 N.E.2d 1177 (1988). '[M]ere negligence is constitutionally insufficient to show actual malice.' Id., citing St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 119, 413 N.E.2d 1187 (1980)." Hill at ¶ 19. In short, Plaintiff was required to come forward with evidence that Defendant had serious doubts as to the truth of the publication, i.e., that Defendant's method of identifying K2 is unreliable or that the quality of the evidence is unreliable, not merely that a test exists to confirm the presence of K2. There is nothing in the record that suggests that Hall and Reser's conclusion that the papers were K2 based on visual inspection of discolored pages and torn edges was reckless because that method of identifying K2 is unreliable. Additionally, unlike in Hill, where the Plaintiff challenged the existence of a confidential informant statement, here there is no dispute that discolored paper with torn edges was discovered in Plaintiff's cell, and Plaintiff has not put forth evidence to create a genuine issue of material fact regarding Defendant's method of identifying K2. Accordingly, Defendant is entitled to summary judgment on Plaintiff's claims of defamation found in count 3 and 6 of Plaintiff's amended complaint.

{¶26} Turning to Plaintiff's claims in counts 7-12 for false light invasion of privacy, Ohio law defines the tort of false light invasion of privacy as follows:

"One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed."

Welling v. Weinfield, 113 Ohio St.3d 464, 2007-Ohio-2451, ¶ 21-24, quoting Restatement of the Law 2d, Torts, Section 652E (1977).

{¶27} In order for a statement to give rise to a false light invasion of privacy claim, it must be untrue. Welling at ¶ 52. It must also be publicized. Id. "Publicized" is different from "published." Id. The Supreme Court of Ohio explained the distinction:

"Publicity * * * differs from 'publication,' as that term is used * * * in connection with liability for defamation. Publication,' in that sense, is a word of art, which includes any communication by the defendant to a third person. Publicity,' on the other hand, means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication, which may be oral, written or by any other means. It is one of a communication that reaches, or is sure to reach, the public."

Id. at ¶ 53, quoting Restatement of the Law 2d, Torts, Section 625E, Comment a (1977).

{¶28} Defendant argues that Plaintiff cannot establish publicity with respect to any of the conduct reports. Defendant put forth evidence that the conduct reports are stored electronically on its internal DOTS portal and that only ODRC employees may access the DOTS portal. Defendant further put forth evidence that ODRC employees are not permitted to access or disclose any DOTS records except as necessary to perform their job duties. Further, Defendant put forth evidence that conduct reports are not published beyond storage on the DOTS portal unless necessary in the ordinary course of business. Finally, there have been no public records requests regarding Plaintiff's conduct reports and subsequent disciplinary proceedings. Plaintiff by contrast, put forth evidence that the conduct reports were shown to a hearing officer, RIB chairman, RIB secretary, and warden designee.

{¶29} There is no evidence before the Court that the conduct reports were publicized to the general public or to the inmates in the institutions. Additionally, while the conduct reports are stored electronically on the DOTS portal system, there is no evidence that anyone other than a hearing officer, RIB chairman, RIB secretary, and warden designee ever saw the conduct reports. Given the limited number of people in the very limited context of the disciplinary process who are aware of the conduct reports, the Court cannot conclude that Plaintiff has demonstrated that the conduct reports were communicated to so many persons that the matter must be regarded as substantially certain to become public knowledge. Indeed, there is simply no evidence that the statements at issue were communicated to the public at large. Accordingly, there is no genuine issue of material fact and Defendant is entitled to judgment as a matter of law on Plaintiff's claims of false light invasion of privacy in counts 7-12 of his amended complaint.

Conclusion

{¶30} Based upon the foregoing, the Court finds that there are no genuine issues of material fact and that Defendant is entitled to judgment as a matter of law on Plaintiffs claims of defamation and false light invasion of privacy. Accordingly, judgment shall be entered in favor of Defendant.

JUDGMENT ENTRY

{¶31} For the reasons set forth in the Decision filed concurrently herewith, Defendant's motion for summary judgment is GRANTED. All events are hereby VACATED. Court costs are assessed against Plaintiff. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.