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

> Ohio Court of Claims · September 27, 2024 · 2024 Ohio 4949

URL: https://www.frixlaw.com/law-library/cases/10743267

## Case

- **Court:** Ohio Court of Claims
- **Decided:** September 27, 2024
- **Citations:** 2024 Ohio 4949
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Sadler
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10743267

## Opinion text

[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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10743267. Public record. Not legal advice.