[Cite as Greathouse v. Dept. of Rehab. & Corr., 2009-Ohio-7018.]

                                                        Court of Claims of Ohio
                                                                           The Ohio Judicial Center
                                                                   65 South Front Street, Third Floor
                                                                              Columbus, OH 43215
                                                                    614.387.9800 or 1.800.824.8263
                                                                               www.cco.state.oh.us




TERRANCE GREATHOUSE

       Plaintiff

       v.

DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant
       Case No. 2009-03088

Judge Clark B. Weaver Sr.
Magistrate Steven A. Larson

DECISION




        {¶ 1} On August 31, 2009, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). Plaintiff did not file a response. The motion is now before the
court for a non-oral hearing pursuant to L.C.C.R. 4.
        {¶ 2} Civ.R. 56(C) states, in part, as follows:
        {¶ 3} “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
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.” See also
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
      {¶ 4} At all times relevant, plaintiff was an inmate in the custody and control of
defendant at the Ross Correctional Institution (RCI) pursuant to R.C. 5120.16. Plaintiff
alleges that Corrections Lieutenant Virgil Flannery defamed him in January 2009 by
telling other inmates that plaintiff “rapes white inmates but there isn’t enough evidence
to formally charge” him. Plaintiff further alleges that during a security review committee
meeting on March 6, 2009, Unit Manager Jonathan Pence defamed him by telling other
committee members that plaintiff was “smoking crack” when he committed the crimes
for which he is imprisoned. According to plaintiff, Pence subsequently made a similar
statement to inmate Donovan Stevens.
      {¶ 5} “Defamation is defined as ‘the unprivileged publication of a false and
defamatory matter about another * * * which tends to cause injury to a person’s
reputation or exposes him to public hatred, contempt, ridicule, shame or disgrace * * *.’
McCartney v. Oblates of St. Francis deSales (1992), 80 Ohio App.3d 345, 353. As
suggested by the definition, a publication of statements, even where they may be false
and defamatory, does not rise to the level of actionable defamation unless the
publication is also unprivileged. Thus, the threshold issue in such cases is whether the
statements at issue were privileged or unprivileged publications.” Sullivan v. Ohio Dept.
of Rehab.& Corr., Ct. of Cl. No. 2003-02161, 2005-Ohio-2122, ¶8.
      {¶ 6} Privileged statements are those that are “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. The essential elements thereof are good faith,
an interest to be upheld, a statement limited in its scope to this purpose, a proper
occasion, and publication in a proper manner and to proper parties only.” Hahn v.
Kotten (1975), 43 Ohio St.2d 237, 244.
      {¶ 7} Furthermore, a qualified privilege can be defeated only by clear and
convincing evidence of actual malice. Bartlett v. Daniel Drake Mem. Hosp. (1991), 75
Ohio App.3d 334, 340. “Actual malice” is “acting with knowledge that the statements
are false or acting with reckless disregard as to their truth or falsity.” Jacobs v. Frank
(1991), 60 Ohio St.3d. 111, 116.
       {¶ 8} In support of its motion, defendant provided the affidavits of Flannery,
Pence, Stevens, RCI Secretary Denise Parker, and RCI North Unit Manager Matthew
Stuntebeck, and a transcript of plaintiff’s deposition testimony.
       {¶ 9} With regard to the allegation that Flannery told other inmates that plaintiff
“rapes white inmates,” Flannery states in his affidavit that on January 17, 2009, at
approximately 2:30 a.m., he woke plaintiff and “escorted him out of his cell and into a
small TV room and closed the door.” Flannery states that he then informed plaintiff that
he “had received a kite from an unidentified inmate stating that [plaintiff] was pressing
inmates for sex.”    According to Flannery, he did not inform other inmates of the
accusation and the only other individual present during his conversation with plaintiff
was a corrections officer.
       {¶ 10} With regard to the March 6, 2009 incident, Parker, Pence, and Stuntebeck
state in their affidavits that, on that day, the three of them comprised a security review
committee which was responsible for assessing inmates’ security levels based upon
their sentences, criminal histories, programs completed in prison, and other factors.
Parker states that during plaintiff’s appearance before the committee, she asked him
why his sentence appeared to be rather lengthy relative to the crimes that he was
convicted of. Pence states that when plaintiff declined to answer this question, he
announced that according to plaintiff’s institutional file, plaintiff had previously told
defendant during a Sex Offender Risk Reduction Center assessment that he was “high
on crack” when he committed the crimes. Pence states that he asked plaintiff to confirm
this information, but that plaintiff would not respond.         According to Pence, his
statements regarding plaintiff’s drug use were relevant for the committee to understand
plaintiff’s sentence and to assess his security level.      As to the alleged discussion
between Pence and Stevens, both state that they never discussed plaintiff’s alleged
drug use with one another.
       {¶ 11} As stated above, plaintiff did not file a response to defendant’s motion, nor
did he provide the court with any affidavit or other permissible evidence to support his
allegations.
       {¶ 12} Civ.R. 56(E) provides in part:
       {¶ 13} “When a motion for summary judgment is made and supported as
provided in this rule, 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. If
the party does not so respond, summary judgment, if appropriate, shall be entered
against the party.”
       {¶ 14} Based upon the uncontested affidavit testimony of Flannery, Parker,
Pence, Stevens, and Stuntebeck, the only reasonable conclusions to draw are that
Flannery did not tell other inmates that plaintiff had been accused of sexual misconduct,
that Pence’s statements during the security review committee meeting are protected by
a qualified privilege, and that Pence did not speak with Stevens about plaintiff’s alleged
drug use.
       {¶ 15} 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.
Accordingly, defendant’s motion for summary judgment shall be granted and judgment
shall be rendered in favor of defendant.




                                                Court of Claims of Ohio
                                                                           The Ohio Judicial Center
                                                                   65 South Front Street, Third Floor
                                                                              Columbus, OH 43215
                                                                    614.387.9800 or 1.800.824.8263
                                                                               www.cco.state.oh.us




TERRANCE GREATHOUSE
       Plaintiff

       v.

DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant
       Case No. 2009-03088

Judge Clark B. Weaver Sr.
Magistrate Steven A. Larson

JUDGMENT ENTRY




          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. 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.




                                           _____________________________________
                                           CLARK B. WEAVER SR.
                                           Judge

cc:


Stephanie D. Pestello-Sharf                    Terrance Greathouse, #516-781
Assistant Attorney General                     P.O. Box 7010
150 East Gay Street, 18th Floor                Chillicothe, Ohio 45601
Columbus, Ohio 43215-3130

RCV/cmd
Filed November 6, 2009
To S.C. reporter December 29, 2009
