Alford v. Ohio Dept. of Rehab. & Corr.

[Cite as Alford v. Ohio Dept. of Rehab. & Corr., 2024-Ohio-4949.]

IN THE COURT OF CLAIMS OF OHIO

BRIAN KEITH ALFORD Case No. 2023-00502JD

Plaintiff Judge Lisa L. Sadler

Magistrate Gary Peterson

v.

DECISION

OHIO DEPARTMENT OF

REHABILITATION AND CORRECTION

Defendant

{¶1} On July 18, 2024, Defendant filed a Motion for Summary Judgment pursuant

to Civ.R. 56(C), asserting that Plaintiff’s defamation claim fails because Ohio Department

of Rehabilitation and Correction (ODRC) employees are entitled to a qualified privilege

and that Plaintiff cannot establish actual malice.1 Defendant also argues that ODRC

cannot be liable for comments made by Aramark employees as there is no agency

relationship between Aramark and ODRC. On August 22, 2024, Plaintiff filed a

Response, and, on August 29, 2024, Defendant filed a Reply. On September 10, 2024,

Plaintiff filed a sur-reply without leave of the Court, and thus it shall not be considered.

For the reasons stated below, the Court GRANTS Defendant’s Motion for Summary

Judgment.

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,

1 On August 27, 2024, Plaintiff filed a motion to recuse Magistrate Gary Peterson for appearance

of bias. However, this decision is issued by the undersigned Judge, and given the disposition of this

decision, Plaintiff’s motion is DENIED as moot.

Case No. 2023-00502JD -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 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, 1996-Ohio-107, 292.

{¶3} 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. 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.”

{¶4} When considering the evidence, “[a]ny doubt must be resolved in favor of the

non-moving party.” Pingue v. Hyslop, 2002-Ohio-2879, ¶ 15 (10th Dist.). It is well-

established that granting summary judgment is not appropriate 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., 1999 Ohio App. LEXIS 2038, 7 (10th

Dist. May 4, 1999).

Background

{¶5} Plaintiff alleges that, on July 8, 2023, an ODRC conduct report was filed by

Aramark worker Kendrick “that was unfounded and without merit” and that “the author [of

the conduct report] knew . . . [the allegations] were false, and that ODR was well aware

of the falsity of the report based upon a review of the seurity camera.” 2 Complaint, 1.

2 The quoted language is as written in Plaintiff’s Complaint.

Case No. 2023-00502JD -3- DECISION

The report indicated that after being handcuffed, Plaintiff “was not masterbating, but

allegedly hd his private out.” Id. at 1-2. Corrections Officer Corey, at an RIB hearing,

“when called to testify . . . [alleged] that plaintiff was playing with his private.” Id. at 2.

Plaintiff alleges that Corey’s statement is defamatory because it indicates not only that

Plaintiff had his penis exposed but that he was also masturbating. Id. He asserts that the

statement that he was masturbating is untrue and has damaged his reputation. Id.

{¶6} In support of its Motion, Defendant submitted the affidavits of Aaron Corey, a

corrections officer at Ross Correctional Institution, and of Kenneth Kopycinski, ODRC’s

Chief of the Office of Acquisition and Contract Compliance.

{¶7} Corey asserts that he responded to the kitchen after Aramark employee

Kendrick alerted ODRC staff that she’d seen Plaintiff masturbating. Affidavit of Aaron

Corey, paragraph 5. Corey reported that Kendrick said she saw Plaintiff “playing with his

penis over in the corner.” Id. at 6. Corey also asserts that “[m]asturbation, and more

broadly, indecent exposure, is a violation of DRC’s Inmate Rules of Conduct, specifically

what Rule 14 was at the time, which states: seductive or obscene acts, including indecent

exposure or masturbation; including, but not limited to, any word, action, gesture, or other

behavior that is sexual in nature and would be offensive to a reasonable person.” Id. at 7.

Corey repeated what Kendrick had told him when he was called as a witness before the

Rules and Infraction Board (RIB). Id. at 8. Corey avers that he only communicated with

necessary ODRC staff pursuant to ODRC policy and did not speak with any non-ODRC

employees or any incarcerated persons concerning these events. Id. at 9.

{¶8} Kopycinski avers that food service employees are employees or agents of

Aramark, not ODRC. Affidavit of Kenneth Kopycinski, paragraph 4. Kopycinski further

avers that Aramark is responsible for procuring the equipment and supplies necessary to

operate, clean, and maintain the kitchens of ODRC. Id. at 5. ODRC is not involved in

Aramark’s decision-making and does not control the details of the work that Aramark

employees do. Id. at 6. ODRC is not involved in the kitchens; daily operation nor does

ODRC play any role in recruiting, staffing, paying, supervising, disciplining, or terminating

Aramark employees, and Aramark controls the hours worked and compensation given to

each of its employees, including employee benefits and wages. Id. at 7-8.

Case No. 2023-00502JD -4- DECISION

{¶9} In response, Plaintiff submitted his own affidavit wherein he avers that Corey

asked Kendrick if Plaintiff was “masterbating”, to which Kendrick stated “No, but he had

it out.” Plaintiff’s affidavit, paragraph 6. Plaintiff further alleges that Kendrick did not state

that he was playing with his penis in the corner. Id. at 7. Plaintiff maintains that Corey

lied to bolster Kendricks’s incident report. Id. at 3. Notably, nowhere in Plaintiff’s affidavit

does he deny that his penis was out in the kitchen; only that he was not playing with his

penis or masturbating. Plaintiff did not submit any evidence concerning Aramark’s

relationship with ODRC.

Law and Analysis

Independent Contractor

{¶10} “Generally, an employer or principal is vicariously liable for the torts of its

employees or agents under the doctrine of respondeat superior, but not for the negligence

of an independent contractor over whom it retained no right to control the mode and

manner of doing the contracted-for work.” Clark v. Southview Hosp. & Family Health Ctr.,

68 Ohio St.3d 435, 438 (1994).

{¶11} “The Ohio Supreme Court has set out a test to distinguish an agency

relationship (sometimes also referred to as a master-servant relationship) from an

employer-independent contractor relationship: ‘Did the employer retain control of, or the

right to control, the mode and manner of doing the work contracted for? If he did, the

relationship is that of principal and agent or master and servant. If he did not but is

interested merely in the ultimate result to be accomplished, the relationship is that of

employer and independent contractor.’” Title First Agency, Inc. v. Xpress Closing Serv.,

Inc., 2004-Ohio-242, ¶ 11 (10th Dist.), quoting Councell v. Douglas, 163 Ohio St. 292

(1955), paragraph one of the syllabus.

{¶12} “In determining whether an employer has the degree of control necessary to

establish agency, courts examine a variety of factors, including: whether the employer or

individual controls the details of the work; whether the individual is performing in the

course of the employer’s business rather than in an ancillary capacity; whether the

individual receives compensation from the employer, and the method of that

compensation; whether the employer or individual controls the hours worked; whether the

Case No. 2023-00502JD -5- DECISION

employer or individual supplies the tools and place of work; whether the individual offers

his services to the public at large or to one employer at a time; the length of employment;

whether the employer has the right to terminate the individual at will; and whether the

employer and individual believe that they have created an employment relationship.”

Wright v. Ohio Dept. of Rehab. & Corr., 2014-Ohio-4359, ¶ 10 (10th Dist.).

{¶13} Here, Plaintiff seeks to hold ODRC liable for comments made by Kendrick,

an employee of Aramark. Complaint, ¶ 12. However, the undisputed affidavit testimony

of Kopycinski establishes that Aramark employees are not agents or employees of

ODRC. Aramark procures the equipment and supplies necessary to operate, clean, and

maintain the equipment. ODRC is not involved in the decision-making process and does

not control the details of the work of the Aramark employees. ODRC is not involved in

the daily operations and does not play any role in recruiting, staffing, paying, supervising,

disciplining, or terminating of Aramark employees. Aramark controls the hours worked

and compensation given to each of its employees. Plaintiff did not submit any evidence

to contradict that put forth by Defendant, and as a result, it must be concluded that

Aramark is an independent contractor and that ODRC cannot be liable for the actions or

inactions of Aramark employees, including Kendrick. Accordingly, Plaintiff’s allegation

that ODRC is liable for comments made by Kendrick in a conduct report fails as a matter

of law.

Defamation

{¶14} “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,

2008-Ohio-1041, ¶ 9, quoting A & B-Abell Elevator Co., Inc. v. Columbus/Cent. Ohio Bldg.

& Constr. Trades Council, 1995-Ohio-66, ¶ 7 (1995). “‘Slander’ refers to spoken

defamatory words, while ‘libel’ refers to written or printed defamatory words.” Schmidt v.

Northcoast Behavioral Healthcare, 2011-Ohio-777, ¶ 8 (10th Dist.). Truth is a complete

defense in an action against libel or slander. R.C. 2739.02.

Case No. 2023-00502JD -6- DECISION

{¶15} “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 (1975). Even if a statement was false,

“‘[u]pon certain privileged occasions . . . the law recognizes that false, defamatory matter

may be published without civil liability.’” M.J. DiCorpo, Inc. v. Sweeney, 1994-Ohio-316,

quoting Bigelow v. Brumley, 138 Ohio St. 574, 579 (1941). “The privileged occasions in

which this principle applies are divided into two classes: (1) those that are subject to

absolute privilege, and (2) those that are subject to a qualified privilege.” Mettke v.

Mouser, 2013-Ohio-2781, ¶ 6 (10th Dist.). “‘The distinction between these two classes is

that the absolute privilege protects the publisher of a false, defamatory statement even

though it is made with actual malice, in bad faith and with knowledge of its falsity; whereas

the presence of such circumstances will defeat the assertion of a qualified privilege.’”

DiCorpo, quoting Bigelow, at 579-80.

{¶16} Qualified privilege extends to a communication “‘“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.”’” (Emphasis deleted.) McIntyre v. Ohio Bur. of

Workers’ Comp., 2013-Ohio-2338 (10th Dist.), ¶ 6, quoting Hahn at 244.

{¶17} “Once established, ‘a qualified privilege may be defeated . . . if a claimant

proves with convincing clarity that a publisher acted with actual malice.’” Alford v. Ohio

Dept. of Rehab. & Corr., 2024-Ohio-19, ¶ 22, (10th Dist.), citing Jackson, 2008-Ohio-

1041, at ¶ 9. “‘Actual malice’ is defined as ‘acting with knowledge that the statements are

false or acting with reckless disregard as to their truth or falsity.’” Watley v. Ohio Dept. of

Rehab. & Corr., 2008-Ohio-3691, ¶ 32 (10th Dist.), citing Jacobs v. Frank, 60 Ohio St.3d

111, 114-116 (1991). “Evidence that establishes, at best, the publisher ‘should have

known’ of the alleged falsity of the statement is insufficient to establish actual malice. . . .

‘[M]ere negligence is constitutionally insufficient to show actual malice.’” Hill v. Ohio Dept.

of Rehab. & Corr., 2021-Ohio-561, ¶ 19 (10th Dist.), citing Varanese v. Gall, 35 Ohio St.3d

78, 82 (1988).

Case No. 2023-00502JD -7- DECISION

{¶18} “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.’” Hill, 2021-

Ohio-561, ¶ 19 (10th Dist.), citing Jackson, 2008-Ohio-1041, at ¶ 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,

2008-Ohio-3691, at ¶ 33 (quotations omitted).

{¶19} The undisputed evidence establishes that the statement that Plaintiff was

“playing with himself” is subject to a qualified privilege. The statement was made by

Corey at the RIB hearing. The statement was only made to necessary ODRC staff, and

Plaintiff and was not made to any other inmates or other individuals. The statement

initially made by the Aramark worker is not at issue here because she is not an agent or

employee of ODRC and thus ODRC is not responsible for her statement.

{¶20} Additionally, regardless of the exact words stated by Corey at the RIB

hearing, Rule 14 states that indecent exposure is a violation of ODRC policy. Plaintiff, in

his affidavit, does not deny that he exposed himself in violation of Rule 14. The phrase

used, “playing with himself,” is in congruence with Plaintiff’s behavior in exposing his

penis, and a Rule 14 violation, even if it was his penis’s mere exposure rather than its

literal masturbation.

{¶21} Defendant has also put forth evidence that the statement was made in good

faith and with an interest to be upheld. The statement was also limited in its scope

inasmuch as the statement only reported the suspected wrongdoing and was only made

in an appropriate setting. Accordingly, Defendant has established that the statement is

subject to a qualified privilege. See Alford, 2024-Ohio-19, ¶ 22-25, (10th Dist.) (applying

qualified privilege to statements made in a conduct report and before the RIB); Scott v.

Ohio Dept. of Rehab. & Corr., 2023-Ohio-1647 (10th Dist.) (applying qualified privilege to

statements made in a conduct report and before the RIB); Hill, 2021-Ohio-561, ¶ 21-26

(applying qualified privilege to statements made in a conduct report and before the RIB);

Watley, 2008-Ohio-3691, ¶ 32 (applying qualified privilege to statements made in a

conduct report and before the RIB).

Case No. 2023-00502JD -8- DECISION

{¶22} Here, Plaintiff did not put forth evidence to contradict the evidence put forth

by Defendant nor create a genuine issue of material fact. Plaintiff failed to put forth clear

and convincing evidence that Corey’s statement was made with actual malice. As stated

previously, Plaintiff denied that he was masturbating but did not deny that he exposed his

penis in the kitchen area. Corey’s statement thus captured the events alleged to have

occurred. Accordingly, Defendant met its initial burden pursuant to Civ.R. 56 by

demonstrating that the statement is subject to a qualified privilege and that Plaintiff cannot

establish actual malice, and Plaintiff failed to meet his reciprocal burden pursuant to

Civ.R. 56 to put forth clear and convincing evidence that the statement was made with

actual malice. As previously stated, Civ.R. 56(E) provides: “When a motion for summary

judgment is made and supported as provided in this rule, an adverse party may not rest

upon 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.”

Conclusion

{¶23} Based upon the foregoing, the Court finds that there is no genuine issue of

material fact that a qualified privilege is applicable and bars Plaintiff’s defamation claim

and that Plaintiff cannot establish actual malice. Defendant’s Motion for Summary

Judgment shall be GRANTED.

LISA L. SADLER

Judge

[Cite as Alford v. Ohio Dept. of Rehab. & Corr., 2024-Ohio-4949.]

BRIAN KEITH ALFORD Case No. 2023-00502JD

Plaintiff Judge Lisa L. Sadler

Magistrate Gary Peterson

v.

JUDGMENT ENTRY

OHIO DEPARTMENT OF

REHABILITATION AND CORRECTION

Defendant

IN THE COURT OF CLAIMS OF OHIO

{¶24} Based upon the decision filed concurrently herewith, the Court concludes

that there are no genuine issues of material fact, and that Defendant is entitled to

judgment as a matter of law. Therefore, Defendant is entitled to summary judgment, and

Defendant’s Motion for Summary Judgment is GRANTED. Judgment is rendered in favor

of Defendant. All previously scheduled events are 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.

LISA L. SADLER

Judge

Filed September 27, 2024

Sent to S.C. Reporter 10/14/24