[Cite as Hill v. Ohio Dept. of Rehab. & Corr., 2020-Ohio-478.]




ROBERT HILL                                            Case No. 2019-00632JD

        Plaintiff                                      Judge Patrick M. McGrath
                                                       Magistrate Gary Peterson
        v.
                                                       DECISION
OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION

        Defendant
        {¶1} On September 16, 2019, defendant, Ohio Department of Rehabilitation and
Correction (ODRC), filed a motion for summary judgment pursuant to Civ.R. 56(B). On
October 28, 2019, plaintiff filed a memorandum in opposition. The motion for summary
judgment is now before the court for a non-oral hearing pursuant to L.C.C.R. 4(D).
        {¶2} As a preliminary matter, on December 27, 2019, plaintiff filed a document
captioned “Plaintiff Robert Hill’s Motion for Leave to Compel Production of Video &
Prographs (sic) for Inspection.”            Plaintiff requests that the court compel ODRC to
provide him with “video, photographs, and/or stile photographs for inspection” pursuant
to Civ.R. 37. Plaintiff states that he sent ODRC a request for production of documents
in July of 2019. Plaintiff avers that ODRC responded by objecting to the request. On
January 8, 2020, ODRC filed a response wherein it agreed to make the video available
for plaintiff’s inspection. Therefore, plaintiff’s motion is DENIED as moot. The court will
now address ODRC’s motion for summary judgment.

Standard of Review
        {¶3} Civ.R. 56(C) states, in part, as follows:
        Summary judgment shall be rendered forthwith if the pleadings,
        depositions, answers to interrogatories, written admissions, affidavits,
Case No. 2019-00632JD                        -2-                                 DECISION


       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 judgment as a matter of law. No
       evidence or stipulation may be considered except as stated in this rule. A
       summary judgment shall not be rendered unless it appears from the
       evidence or stipulation, and only from the evidence or stipulation, that
       reasonable minds can come to but one conclusion and that conclusion is
       adverse to the party against whom the motion for summary judgment is
       made, that party being entitled to have the evidence or stipulation
       construed most strongly in the party’s favor.

Factual Background
       {¶4} At all times relevant to the verified complaint, plaintiff was an inmate in the
custody and control of ODRC at the Noble Correctional Institution (NCI).             Plaintiff
alleges in his verified complaint that on June 13, 2018, Investigator Jared McGilton
wrote a false and defamatory conduct report concerning plaintiff’s involvement in a drug
network at NCI. Plaintiff states that as a result of McGilton’s false report, plaintiff was
discharged as a law clerk and placed in segregation. Plaintiff was also transferred to a
more restricted facility and lost privileges. Plaintiff attached a copy of a conduct report
to his complaint, which shows that he was charged with a violation of ODRC Rule 40.
Plaintiff also attached a copy of the Disposition of the Rules Infraction Board, which
found him guilty of a violation of ODRC Rule 40.            Plaintiff brings this action for
defamation arising out of the statement that was written in the conduct report regarding
his involvement in a drug network at NCI.
       {¶5} Defendant argues, among other things, that the allegedly defamatory
statements are protected by a qualified privilege.       In support of its motion, ODRC
submitted an affidavit from Investigator Jared McGilton, a conduct report, the disposition
of the Rules Infraction Board, and a warden’s decision on appeal. McGilton avers that
Case No. 2019-00632JD                             -3-                                      DECISION


in 2016, he began an investigation at NCI regarding an illegal drug conveyance network
facilitated by another inmate named Adam Poulton. (McGilton Aff. ¶ 3.)                     By utilizing
confidential sources, video surveillance, phone monitoring, and JPay communications,
McGilton discovered that Poulton was involved in conveying, distributing, and selling
illegal drugs for profit within NCI. Id. Poulton conveyed the drugs into NCI; thereafter,
he distributed the drugs amongst multiple inmates. Id.                  Poulton was subsequently
criminally convicted for his involvement in the drug network. Id.
        {¶6} McGilton states that plaintiff was assigned to NCI’s law library during the
time of his investigation. (McGilton Aff. ¶ 4.) According to McGilton, video evidence
and confidential sources suggested plaintiff assisted Poulton by hiding large quantities
of Suboxone inside the law library and facilitated meetings between individuals involved
in the drug conveyance network. Id. Based on this evidence, McGilton wrote a conduct
report against plaintiff, charging him with a violation of ODRC Rule 40.1 (McGilton Aff.
¶ 5.)   McGilton explains that a conduct report is a document that ODRC uses to
memorialize that an inmate has violated one or more of the inmate rules. Id. On
June 13, 2018, NCI’s Rules Infraction Board (Board) found plaintiff guilty of violating
ODRC Rule 40. (McGilton Aff. ¶ 6.) Plaintiff appealed the Board’s decision to the
warden and that decision was later affirmed on July 6, 2018.                    (McGilton Aff. ¶ 7.)
McGilton avers that he did not show a copy of the conduct report to any inmates at NCI,
or to anyone other than ODRC staff. (McGilton Aff. ¶ 8.)
        {¶7} Plaintiff, in opposing ODRC’s motion, submitted his own affidavit, two
affidavits by Adam Poulton, a verified complaint, ODRC’s responses to plaintiff’s first set
of admissions and production of documents and interrogatories, and several other
exhibits attached thereto. In his affidavit, plaintiff states that he was housed in D1 and


        1According to McGilton, an ODRC Rule 40 violation involves “procuring or attempting to procure,
unauthorized drugs; aiding, soliciting, or collaborating with another to procure unauthorized drugs or to
introduce unauthorized drugs into a correctional facility.”
Case No. 2019-00632JD                        -4-                                   DECISION


worked as a law clerk in the NCI library where he would regularly assist inmates with
their legal issues. (Hill Aff. ¶ 9.) Plaintiff states “[b]ecause I assisted a few inmates
either during the appeal process, postconviction relief, or judicial release, they were
granted relief, thus making me the most popular inmate at Noble Correctional
Institution.” Id. During his employment as a law clerk in the NCI law library, plaintiff did
not receive a conduct report from April of 2012 to June of 2018. Id., at ¶ 19.
       {¶8} Plaintiff recounted that in April of 2016, as he exited the inmate dining hall,
an officer called him over and began to conduct a search of his person. Id., at ¶ 20.
According to plaintiff, the officer conducted the search to humiliate him in front of the
other officers watching. Id. Plaintiff states that the officer “grabbed my underwear band
and pulled as hard as he could pulling my underwear between my butt cheeks ripping
the band of my underwear.” Id. Plaintiff states that as he turned to walk away from the
officer, he shook his head. Id., at ¶ 21. According to plaintiff, McGilton then called
plaintiff over to him, yelled at him for being disrespectful, and stated that plaintiff did not
belong in D1 and that he was going to place plaintiff in segregation. Id., at ¶ 22.
Plaintiff states that he did not respond to McGilton, which caused McGilton to become
angrier. Id. Plaintiff avers that he later learned McGilton wanted plaintiff removed from
D1, but he did not have a justifiable reason to do so. Id., at ¶ 24.
       {¶9} Plaintiff avers that in June or July of 2016, Poulton requested assistance
from plaintiff with a postconviction relief petition. Id., at ¶ 26. According to plaintiff,
Poulton was placed in segregation and after being released, began working for
McGilton as a confidential informant. Id., at ¶ 30. Plaintiff states “[e]verytime I learned
about drugs in the institution I passed information to [Poulton] assuming he passed it to
the Investigator.” Id., at ¶ 35. On June 6, 2018, plaintiff was taken to segregation and
was placed in a holding cell with Poulton. Id., at ¶ 45. While in the holding cell, plaintiff
learned that Poulton’s girlfriend was caught conveying Suboxone into NCI. Id. Plaintiff
Case No. 2019-00632JD                        -5-                                  DECISION


states that he was later issued a conduct report for his alleged involvement in a drug
network at NCI. Id., at ¶ 48.
       {¶10} According to plaintiff’s affidavit, during the Rules Infraction Board hearing
held on June 18, 2018, he denied any involvement in the drug network and called
McGilton a “lying piece of shit.” Id., at ¶ 51. The Board found plaintiff guilty of violating
ODRC Rule 40. Id., at ¶ 52. Plaintiff appealed the Board’s decision, but his appeal was
denied. Id., at ¶ 53. Plaintiff states, “I did not at anytime (sic) during my incarceration at
the Noble Correctional Institution participate in any drug network, attempted to or
conveyed drugs into the facility, sell, possess, hold or hide drugs on my person, in the
law library for myself or anyone else.” Id., at ¶ 58. Plaintiff states that he had no
knowledge that Poulton was conveying drugs into NCI. Id., at ¶ 60. Plaintiff avers that
McGilton does not possess any confidential informant statements or statements from
staff members regarding his involvement in a drug network. Id., at ¶ 63-64. Plaintiff
further avers that McGilton possesses no Jpay messages, telephone recordings, or
video evidence to support the conduct report. Id., at ¶ 65-66. At the end of his affidavit,
plaintiff states “Investigator McGilton did, purposely, with actual malice write the
June 13, 2018 conduct report being aware of the high probability of falsity with
allegations that video exist, and confidential sources exist, that I not only held or hide
drugs in the law library but would also facilitate meetings of individuals in conveyance of
drugs.” Id., at ¶ 69.
       {¶11} In his affidavits, Adam Poulton states that plaintiff was never involved in
conveying drugs and his involvement with plaintiff was only related to assistance with
his postconviction relief. (Poulton first Aff. ¶ 1-2.) Poulton goes on to state that for
almost two years he would meet with plaintiff in the law library to discuss case law.
(Poulton second Aff. ¶ 6.)      Poulton avers that he never discussed or exchanged
Suboxone or any other drug with plaintiff. Id., at ¶ 8.
Case No. 2019-00632JD                        -6-                                  DECISION


Law and Analysis
       {¶12} As previously stated, plaintiff alleges the conduct report issued by McGilton
constitutes defamation. “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.
       {¶13} “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.
       {¶14} “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.
Case No. 2019-00632JD                      -7-                                 DECISION


      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.
      {¶15} “When a statement is found to be defamation per se, both damages and
actual malice are presumed to exist.” Knowles v. Ohio State Univ., 10th Dist. Franklin
No. 02AP-527, 2002-Ohio-6962, ¶ 24. “When, however, a statement is only defamatory
per quod, a plaintiff must plead and prove special damages.” Am. Chem. Soc. at ¶ 51.
      {¶16} As stated earlier, in its motion, ODRC argues among other things that a
qualified privilege exists for its employees who interact with inmates on a daily basis to
report and prohibit the conveyance of drugs inside the prison.
             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. Finally, if a defendant establishes all five elements for
Case No. 2019-00632JD                             -8-                                  DECISION


           application of a qualified privilege, a plaintiff can defeat its application only
           by showing by clear and convincing evidence that the defendant acted
           with actual malice.
(Internal citations omitted.) Mallory v. Ohio University, 10th Dist. Franklin No. 01AP-
278, 2001 Ohio App. LEXIS 5720, * 21-22.
           {¶17} ODRC has put forth evidence that the statement made in the June 13,
2018 conduct report of plaintiff’s involvement in a drug network at NCI is subject to a
qualified privilege. There is no doubt that the statement was made in connection with
McGilton’s job duties. The statement was made in good faith as it was made after
receiving statements from confidential sources and reviewing video evidence
suggesting plaintiff was involved in facilitating meetings and hiding drugs in the NCI law
library.     The statement was made in a proper occasion and to proper parties, i.e.,
ODRC’s staff members. The statement was also limited in scope.
           {¶18} In his affidavit, plaintiff avers that McGilton fabricated the conduct report
with malice because he asserts that McGilton does not possess any confidential
informant statements, JPay messages, telephone recordings, or video evidence.
However, none of these statements by plaintiff are based on plaintiff’s personal
knowledge. Plaintiff provides no basis for a conclusion that he knows what materials
constitute the sources upon which McGilton formed his conclusions. Other than his own
self-serving statements, plaintiff has submitted no evidence showing McGilton lacks
corroborating sources.           At no point does plaintiff explain how he could know what
McGilton knew or how he could know that McGilton fabricated the sources.
           {¶19} Plaintiff’s evidence establishes that plaintiff was not involved in a drug
network at NCI, that plaintiff passed information regarding drug activity at NCI to
Poulton, and that plaintiff has never been involved in the conveyance of drugs inside
NCI. Plaintiff did not submit any evidence that the conduct report was shown to inmates
at NCI or that the report was not the proper occasion to write the statement. Plaintiff did
Case No. 2019-00632JD                          -9-                               DECISION


not submit evidence that McGilton was not authorized to make such statements,
exceeded his job duties, or that the statements were not made in good faith. In short,
none of plaintiff’s evidence contradicts the evidence submitted by ODRC in support of a
qualified privilege regarding the conduct report written on June 13, 2018. There is thus
no genuine issue of any material fact and the uncontroverted facts show that ODRC has
established the defense of qualified privilege. See Watley at ¶ 27-30 (Public policy
concerns dictate that persons employed within the prison system, especially correction
officers who are directly involved with the inmate population, be afforded a qualified
privilege in reporting violations of prison rules in order to maintain the safety and
security of the institution, its prisoners, and its employees.).
       {¶20} “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.   Reckless disregard’ is demonstrated by presenting
‘sufficient evidence to permit a finding that the defendant had serious doubts as to the
truth of [its] publication.” Watley at ¶ 32.
       {¶21} While plaintiff has submitted evidence that disputes the truth of the
statements, he has not submitted evidence of actual malice. “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.” Id., at ¶ 33
(quotations omitted). Plaintiff’s statement in his affidavit that McGilton “did, purposely,
with actual malice write the June 13, 2018 conduct report being aware of the high
probability of falsity * * *” is not based on personal knowledge and is not corroborated.
Furthermore, plaintiff’s assertion that McGilton wanted plaintiff removed from D1 without
justifiable cause is also not based on personal knowledge. Plaintiff offers no details,
other than his own self-serving statements, supporting the basis for his knowledge of
Case No. 2019-00632JD                       -10-                                 DECISION


what McGilton knew and thought. Similarly, plaintiff offers no support for his assertion
that McGilton possesses no confidential sources. Plaintiff has failed to produce facts
that McGilton acted with malice when he wrote the conduct report.            Generally, “[a]
party’s unsupported and self-serving assertions, offered by way of affidavit, standing
alone and without corroborating materials under Civ.R. 56, will not be sufficient to
demonstrate material issues of fact. Otherwise, a party could avoid summary judgment
under all circumstances solely by simply submitting such a self-serving affidavit
containing nothing more than bare contradictions of the evidence offered by the moving
party.” White v. Sears, 10th Dist. Franklin No. 10AP-294, 2011-Ohio-204, ¶ 8. As
stated in Watley,
       We conclude that appellant failed to meet his burden of demonstrating the
       existence of a genuine issue of material fact as to the issue of whether
       Felts acted with actual malice. In his affidavit, appellant merely reasserted
       that which he alleged in his complaint, i.e., that Felts maliciously filed the
       false conduct report. Appellant has failed to produce any evidence that
       refutes appellee’s claim that Felts filed the conduct report in good faith
       based upon his belief that appellant had violated prison rules. Appellant’s
       self-serving affidavit, which is not corroborated by any evidence, is
       insufficient to establish the existence of a material issue of fact. Watley at
       ¶ 34.
Plaintiff’s self-serving conclusory affidavit, absent corroborating evidence, is insufficient
to create a genuine issue of material fact.         Based upon the unrebutted affidavit
testimony of Jared McGilton, the only reasonable conclusion to draw is that the
statements contained in the conduct report were not made with “actual malice” and are
protected by a qualified privilege. Accordingly, ODRC’s motion shall be granted.
Case No. 2019-00632JD                  -11-                             DECISION


Conclusion
      {¶22} Based upon the foregoing, the court concludes that there are no genuine
issues of material fact and that ODRC is entitled to judgment as a matter of law.
ODRC’s motion for summary judgment shall be granted and judgment shall be rendered
in favor of ODRC.




                                       PATRICK M. MCGRATH
                                       Judge
[Cite as Hill v. Ohio Dept. of Rehab. & Corr., 2020-Ohio-478.]




ROBERT HILL                                            Case No. 2019-00632JD

        Plaintiff                                      Judge Patrick M. McGrath
                                                       Magistrate Gary Peterson
        v.
                                                       JUDGMENT ENTRY
OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION

        Defendant
        {¶23} A non-oral hearing was conducted in this case upon defendant’s motion for
summary judgment.               For the reasons set forth in the decision filed concurrently
herewith, defendant’s motion for summary judgment is GRANTED and judgment is
rendered in favor of defendant. All previously scheduled events are VACATED. All
other pending motions are DENIED as moot. 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.




                                                    PATRICK M. MCGRATH
                                                    Judge

Filed January 27, 2020
Sent to S.C. Reporter 2/12/20
