[Cite as Ayers v. Warren Corr. Inst., 2011-Ohio-5959.]




                                                         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

JAMES AYERS,                                              Case No. 2011-01020

       Plaintiff,

       v.                                                 Judge Joseph T. Clark
                                                          Magistrate Matthew C. Rambo
WARREN CORRECTIONAL
 INSTITUTION, et al.,

       Defendants.                                        DECISION

        {¶1} On July 21, 2011, defendant1 filed a motion for summary judgment pursuant
to Civ.R. 56(B). On August 8, 2011, plaintiff filed a response. The motion is now before
the court on a non-oral hearing pursuant to L.C.C.R. 4(D).
        {¶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 County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.

1
 For purposes of this decision, “defendant” refers to both Warren Correctional Institution and Department
of Rehabilitation and Correction. Accordingly, defendant’s September 20, 2011 motion is DENIED as
moot.
Case No. 2011-01020                          -2-                                  DECISION

       {¶4} At all times relevant, plaintiff was an inmate in the custody and control of
defendant pursuant to R.C. 5120.16.            Plaintiff alleges that in December 2010,
Corrections Major D. Luneke authored a conduct report charging him with rules
violations for stealing and then hiding a set of institutional keys. Plaintiff was cleared of
the charges on appeal. Plaintiff asserts that the report authored by Luneke constitutes
defamation, that Luneke’s actions amount to “harassment,” and that defendant was
negligent in its supervision of Luneke.
       {¶5} In support of the motion, defendant filed the affidavit of Luneke, who states:
       {¶6} “1.   I am employed by the Ohio Department of Rehabilitation and
Correction (DRC) as a Corrections Major at Warren Correctional Institution (WCI). I
was a Corrections Major during all the times mentioned herein.              I have personal
knowledge of the matters herein referred to, and make this affidavit in support of
defendant’s motion for summary judgment.
       {¶7} “2.   On December 2, 2010, I learned that a staff member lost a set of DRC
keys in the building.
       {¶8} “3.   On December 3, 2010, I received information in a Kite submitted
anonymously by another inmate that [plaintiff] had taken the keys and hid them behind
the shower panel in the shower next to [his] cell. A true and accurate copy of the Kite is
attached as Exhibit A. It is regular practice for inmates to write Kites * * *.
       {¶9} “4.   With the assistance of maintenance personnel, we removed the
shower panel and found the keys hanging from a string behind the panel.
       {¶10} “* * *
       {¶11} “6. Because the author of the Kite correctly reported the location of the
keys, I believed the confidential informant also correctly identified the person who took
the keys.
Case No. 2011-01020                        -3-                                DECISION

       {¶12} “7. On December 10, 2010, I wrote a Conduct Report concerning
[plaintiff’s] actions on December 2-3, 2010. A true and accurate copy of the Conduct
Report is attached as Exhibit B * * *.
       {¶13} “8. I wrote the conduct report in good faith.
       {¶14} “9. I honestly believed, at the time I wrote the Conduct Report, [plaintiff]
had taken the keys and hid them in the shower. I did not believe my statements in the
Conduct Report were false nor did I have any serious doubts as to their truth.
       {¶15} “10. My purpose of writing the Conduct Report was to report a possible
violation of prison rules.”
       {¶16} “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.
       {¶17} 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, quoting 50 American Jurisprudence 2d 698, Libel and Slander,
Section 195.
Case No. 2011-01020                          -4-                                 DECISION

       {¶18} 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.
       {¶19} Based upon the undisputed affidavit testimony provided by defendant, the
only reasonable conclusion to be drawn from the evidence is that Luneke acted without
malice and that the statements he made in the conduct report he authored were made
in good faith. Thus, defendant is protected from liability for defamation by a qualified
privilege.
       {¶20} With respect to plaintiff’s negligent supervision claim, in order for plaintiff to
prevail on such a claim he must prove: 1) the existence of an employment relationship;
2) the employee’s incompetence; 3) the employer’s actual or constructive knowledge
of such incompetence; 4) the employee’s act or omission causing plaintiff’s injuries and
5) the employer’s negligence in hiring or retaining the employee as the proximate
cause of plaintiff’s injuries. Evans v. Ohio State Univ. (1996), 112 Ohio App.3d 724,
739.
       {¶21} Based upon Luneke’s affidavit, and the fact that plaintiff has not provided
the court with any evidence to the contrary, the only reasonable conclusion to be drawn
from the evidence is that Luneke was not “incompetent,” and, that defendant is entitled
to judgment as a matter of law as to plaintiff’s negligent supervision claim.
       {¶22} The court construes plaintiff’s claim for “harassment” as a claim for
intentional infliction of emotional distress. In order to sustain such a claim, plaintiff must
show that: “(1) defendant intended to cause emotional distress, or knew or should have
known that actions taken would result in serious emotional distress; (2) defendant’s
conduct was extreme and outrageous; (3)            defendant’s actions proximately caused
plaintiff’s psychic injury; and (4) the mental anguish plaintiff suffered was serious.”
Case No. 2011-01020                           -5-                                  DECISION

Hanly v. Riverside Methodist Hosp. (1991), 78 Ohio App.3d 73, 82, citing Pyle v. Pyle
(1983), 11 Ohio App.3d 31, 34.
       {¶23} To constitute conduct sufficient to give rise to a claim of intentional infliction
of emotional distress, the conduct must be “so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” Yeager v. Local Union 20,
Teamsters (1983), 6 Ohio St.3d 369, 375, quoting 1 Restatement of the Law 2d, Torts
(1965) 73, Section 46, Comment d.
       {¶24} “It has not been enough that the defendant has acted with an intent which
is tortious or even criminal, or that he has intended to inflict emotional distress, or even
that his conduct has been characterized by ‘malice,’ or a degree of aggravation which
would entitle the plaintiff to punitive damages for another tort. * * * Generally, the case
is one in which the recitation of the facts to an average member of the community would
arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ The
liability clearly does not extend to mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.” Id. at 374-375.
       {¶25} Based upon the evidence, no reasonable trier of fact could find the alleged
conduct either extreme or outrageous. Accordingly, defendant is entitled to judgment as
a matter of law as to plaintiff’s claim for intentional infliction of emotional distress.
       {¶26} Based upon the foregoing, the court finds that no questions of fact exist for
trial 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.
Case No. 2011-01020                        -6-                                    DECISION


                                               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



JAMES AYERS,                                     Case No. 2011-01020

      Plaintiff,

      v.                                         Judge Joseph T. Clark
                                                 Magistrate Matthew C. Rambo
WARREN CORRECTIONAL
 INSTITUTION, et al.,

      Defendants.                                JUDGMENT ENTRY



       {¶27} 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.




                                          _____________________________________
                                          JOSEPH T. CLARK
                                          Judge

cc:
Case No. 2011-01020                  -7-                              DECISION


Jeanna R. Volp                        James Ayers, #625-838
Jennifer A. Adair                     Ross Correctional Institution
Assistant Attorneys General           P.O. Box 7010
150 East Gay Street, 18th Floor       Chillicothe, Ohio 45601
Columbus, Ohio 43215-3130




Filed September 27, 2011
To S.C. reporter November 18, 2011
