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

[Cite as Castellon v. Ohio Dept. of Rehab. & Corr., 2025-Ohio-4747.]

IN THE COURT OF CLAIMS OF OHIO

ESTEPHEN CASTELLON Case No. 2024-00507JD

Plaintiff Judge Lisa L. Sadler

Magistrate Robert Van Schoyck

v.

DECISION

OHIO DEPARTMENT OF

REHABILITATION AND CORRECTION

Defendant

{¶1} On July 7, 2025, Plaintiff filed a Motion for Summary Judgment pursuant to

Civ.R. 56(A), and Defendant filed a Motion for Summary Judgment pursuant to

Civ.R. 56(B). On August 4, 2025, each party filed a Response, and on August 8, 2025,

each party filed a Reply. For the reasons stated below, the Court GRANTS Defendant’s

Motion for Summary Judgment and DENIES Plaintiff’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):

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

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entitled to have the evidence or stipulation construed most strongly in the

party’s favor.

“[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 fact on a material element of the

nonmoving party’s claim.” Dresher v. Burt, 75 Ohio St. 3d 280, 292 (1996). 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.

{¶3} If the moving party meets its initial burden, the nonmoving party bears a

reciprocal burden outlined in Civ.R. 56(E):

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.

BACKGROUND

{¶4} Plaintiff, formerly an inmate in the custody and control of Defendant, brings

this claim for defamation, abuse of process, intentional tort, negligence, and “breach of

contract/promissory estoppel”. (Complaint, ¶ 13.) Plaintiff contends that on

September 20, 2023, he wrote kites to the warden and deputy warden at Noble

Correctional Institution complaining about the cancellation of events that he had

organized for Hispanic Heritage Month. (Id. at ¶ 12.) It is undisputed that, as a result,

Major Sean Frizzell met with Plaintiff on September 22, 2023, and issued him a conduct

report charging him with violating institutional rules. In the narrative “Supporting Facts”

section of the conduct report, Major Frizzell wrote as follows:

On the above date and time I received a communication that had been sent

by Castellon 704329 as a kite to Wardens Office. The following threatening

statement was located in the kite “I sent to Auftenkamp; detailing the reason

we as a community will not continue to be patronized. All the events with

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any substance was shut down and the banquet was the final straw he wants

to give the appearance of acting in good faith but the Truth is he despises

all of it. I’m done with the benefit of any doubt.”. With the implied threats

contained in the kite I had Castellon escorted to the Ops Wing to discuss.

After Castellon arrived in my Office I asked him who he was referring to as

“we” and he said my community. He was very arrogant and portrayed

himself as a “leader” of others here the institution. As I was questioning

Castellon about this he continued to imply that “his people” would not put

up with it. I continued to remind him that he was an individual who had

written this as an individual. After 10 minutes of a conversation where he

continued with the implied threats I placed him in Restricted Housing. It

was clear he was going to continue make vague threats against staff and

the normal operations of NCI.

The Rules Infraction Board (RIB) at Noble Correctional Institution found Plaintiff guilty of

the rules violations and sanctioned him. (Complaint, ¶ 12.) Soon afterward, Defendant

raised Plaintiff’s security level and transferred him to Richland Correctional Institution.

(Id.) The RIB determination, though, was ultimately reversed by Defendant’s Legal

Services office on appeal. (Id.)

{¶5} According to Plaintiff, the Institutional Inspector at Richland Correctional

Institution, Kelly Rose, “refused to give [him] copies of the documents necessary to

properly file this complaint.” (Id.) Plaintiff relates that he later obtained the requested

documents after filing a mandamus action. (Id.)

{¶6} Plaintiff brings this action to recover monetary damages under theories of

defamation, abuse of process, intentional tort, negligence, and “breach of

contract/promissory estoppel”. (Id. at ¶ 13.) On November 22, 2024, the Court ruled on

a Motion to Dismiss filed by Defendant, granting it, in part, for lack of jurisdiction “to the

extent Plaintiff’s Complaint can be construed to allege a claim challenging his increased

security status or transfer from one institution to another”.

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LAW AND ANALYSIS

Defamation

{¶7} Plaintiff’s defamation claim is based upon statements that Major Frizzell wrote

in the conduct report. In his Motion for Summary Judgment, Plaintiff argues that Major

Frizzell defamed him “specifically [through] the accusations that Mr. Castellon made

‘implied threats’ and ‘vague threats against staff and the normal operations of NCI”.

(Plaintiff’s Motion, p. 4.)

{¶8} To establish defamation, “a plaintiff must show (1) the defendant made a false

statement, (2) the statement was defamatory, (3) the statement was published, (4) the

plaintiff was injured as a result of the statement, and (5) the defendant acted with the

required degree of fault.” Webber v. Ohio Dept. of Pub. Safety, 2017-Ohio-9199, ¶ 36

(10th Dist.).

{¶9} In their motions and respective briefs, Plaintiff argues that he can establish

the foregoing elements, while Defendant argues that Plaintiff cannot show that the

statements at issue were false, among other things.

{¶10} As to the first element for establishing defamation, requiring that the

defending party made a false statement, Plaintiff argues that Major Frizzell’s statements

in the conduct report accusing him of making implied or vague threats were false, while

Defendant argues that these statements were “the opinions and impressions of Major

Frizzell, which are not disprovable and cannot form the basis of a defamation claim.”

(Defendant’s Motion, p. 6.)

{¶11} “Under Ohio law, for a statement to be defamatory, it must be a statement of

fact and not of opinion.” Spingola v. Sinclair Media, II, Inc., 2006-Ohio-6950, ¶ 22 (10th

Dist.). “The fact versus opinion issue presents a question of law for a court to determine.”

Mehta v. Ohio Univ., 2011-Ohio-3484, ¶ 28 (10th Dist.). “To answer this question, a court

must determine whether a reasonable reader will perceive the statement as a fact or an

opinion.” Id.

{¶12} “Courts apply a totality-of-the-circumstances test to determine whether a

statement is a statement of fact or of opinion.” Gilson v. Am. Inst. of Alternative Med.,

2016-Ohio-1324, ¶ 53 (10th Dist.). “In reviewing the totality of the circumstances, courts

should examine the following four factors: (1) the specific language used, (2) whether the

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statement is verifiable, (3) the general context of the statement, and (4) the broader

context in which the statement appears.” Id. “While each factor must be considered, the

weight afforded to each varies based upon the circumstances presented in each case.”

Mehta at ¶ 29.

{¶13} There is no dispute that, as Major Frizzell documented in his conduct report,

Plaintiff wrote a kite to the warden and deputy warden at Noble Correctional Institution

criticizing the cancellation of Hispanic Heritage Month events, including a banquet, which

he said “was the final straw”, and Plaintiff further wrote, among other things, that “we as

a community will not continue to be patronized” and “I’m done with the benefit of any

doubt.”

{¶14} Major Frizzell avers in an affidavit submitted by Defendant that he is the Chief

of Security at Noble Correctional Institution and that the kite was forwarded to him for

review, and upon reading it he “had concerns that the words [Plaintiff] had written

constituted implied threats to the security of the institution, so on September 22, 2023, I

had him escorted to my office to discuss the issue.” (Frizzell Affidavit, ¶ 3-5.) In his

deposition, a transcript of which was submitted by Defendant, Plaintiff testified that at the

meeting he told Major Frizzell that he did not intend to threaten anyone but admitted that

he “wrote the kites out of frustration.” (Plaintiff’s Deposition, p. 77.) Plaintiff admitted in

his deposition that he communicated some of his concerns in the kite “inartfully”.

(Plaintiff’s Deposition, p. 87.) In an affidavit, Plaintiff avers that the purpose of sending

the kite was not to threaten anyone, but to “file a discrimination claim against Deputy

Warden Aufdenkampe, regarding the Hispanic inmate population.” (Plaintiff’s Affidavit, ¶

6.) According to Plaintiff, he acted as “the liaison for the Hispanics” at the institution and

he told Major Frizzell at their meeting that when he wrote “we” in the kite, as in “we as a

community will not continue to be patronized,” he spoke for the entire Hispanic population

there. (Plaintiff’s Deposition, p. 76.) But Plaintiff denies portraying himself “as a leader

in any threatening manner.” (Plaintiff’s Affidavit, ¶ 8.)

{¶15} Major Frizzell avers in his affidavit that he “interpreted Mr. Castellon’s kite,

and his statements and behavior during our meeting as a violation of DRC rule 2.3, which

prohibits extortion by threat of violence or other means towards another person, and rule

2.4, which prohibits use of a telephone, mail, electronic devices, or any other form of

Case No. 2024-00507JD -6- DECISION

communication to threaten, harass, intimidate, or annoy another person.” (Frizzell

Affidavit, ¶ 6.) According to Major Frizzell, the resulting conduct report that he issued

reflected his impressions and interpretations of Plaintiff’s conduct. (Frizzell Affidavit, ¶ 9.)

{¶16} Examining the factors for determining whether a statement is fact or opinion,

first, regarding the specific language used, “it is often appropriate to begin an assessment

of the totality of the circumstances by analyzing ‘the common usage or meaning of the

allegedly defamatory words themselves.’” Wampler v. Higgins, 93 Ohio St.3d 111, 127

(2001), quoting Ollman v. Evans, 750 F.2d 970, 979-980 (D.C. Cir. 1984). At issue here

are Major Frizzell’s statements in the conduct report characterizing Plaintiff’s statements

in the kite as “threatening” and, referring to both the statements made in the kite and at

their meeting, describing them collectively as “implied threats” and “vague threats”. In

Vail v. Plain Dealer Publishing Co., 72 Ohio St.3d 279, 283 (1995), the Supreme Court of

Ohio identified statements conveying “punishable . . . disciplinary conduct” as an example

of potentially actionable language, and in this case Major Frizzell’s statements were made

in the course of charging Plaintiff with violating institutional rules, for which he could be

punished if found guilty by the RIB. Notably, however, Major Frizzell stated that the nature

of the threat he interpreted from Plaintiff’s communications was “implied” or “vague” rather

than being explicit, and “‘statements that are “loosely definable” or “variously

interpretable” cannot in most contexts support an action for defamation.’” Wampler, 93

Ohio St.3d at 128, quoting Ollman, 750 F.2d at 980.

{¶17} Second, regarding whether the statement is verifiable, “[s]tatements lacking

a plausible method of verification are more obviously opinion because they do not rest

upon either implied or explicit fact.” Cooke v. United Dairy Farmers, Inc., 2005-Ohio-

1539, ¶ 24 (10th Dist.). Plaintiff argues that Major Frizzell’s statements accusing him of

making “‘implied threats’ is an objective falsehood, as proven by the appeals decision”

made by Defendant’s Legal Services office. (Plaintiff’s Response, p. 2.) But the Legal

Services Decision on Appeal, accepting Major Frizzell’s characterization that the “threats

were vague and implied”, simply “found no credible threat” sufficient to affirm the rules

infractions that had been found by the RIB. (Emphasis added.) (Plaintiff’s Response,

Exhibit D.) Moreover, courts have concluded that statements describing another’s

communications or conduct as ‘threatening’ cannot support a defamation claim. See

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Hernandez v. Scottsdale Hotel Group LLC, 2020 U.S.Dist. LEXIS 217646 (D.Ariz. Nov.

20, 2020) (statement that plaintiff’s email was “threatening”); Galland v. Johnston, 2015

U.S.Dist. LEXIS 34960 (S.D.N.Y. Mar. 19, 2015) (statements that plaintiff’s emails were

“threatening and disturbing” and that plaintiff “chooses to run his business in a threatening

manner”); Watson v. C.P. Name Illegible Member of the Wisconsin Nursing Bd., 2023

U.S.Dist. LEXIS 193875 (E.D. Wis. Oct. 30, 2023) (“a person’s opinion that another’s

writing appears ‘. . . threatening . . .’ is a matter of opinion rather than one of fact”);

Cornwell v. Dairy Farmers of Am., Inc., 369 F.Supp.2d 87, 110 (D. Mass) (statement that

employee’s behavior was “threatening” was opinion).

{¶18} As to the third factor, i.e. the general context of the statement, the court “must

examine more than just the defamatory statements in isolation to determine if the

‘language surrounding the averred defamatory remarks may place the reasonable reader

on notice that what is being read is the opinion of the writer.’” Mehta, 2011-Ohio-3484,

at ¶ 39 (10th Dist.), quoting Wampler, 93 Ohio St.3d at 130. Here, in the narrative portion

of the conduct report Major Frizzell explained that a communication sent by Plaintiff to the

warden’s office was forwarded to his attention and that he felt the communication

contained a threatening statement. Major Frizzell further explained in the conduct report

that he consequently met with Plaintiff about the matter and felt that statements Plaintiff

made to him at the meeting were similar in nature. Major Frizzell thus identified the

communications by Plaintiff that he subjectively considered to be threatening. Upon

review, the general context of Major Frizzell’s statements about Plaintiff using threatening

language tend to indicate to the reasonable reader that they were Frizzell’s opinion.

{¶19} Finally, the fourth factor, which concerns the broader context of the

statement, requires the court to “examine ‘the broader social context into which the

statement fits. Some types of writing or speech by custom or convention signal to readers

or listeners that what is being read or heard is likely to be opinion, not fact.’” (Emphasis

removed.) Wampler at 131, quoting Ollman, 750 F.2d at 983 (D.C. Cir. 1984). “For

instance, in both Vail and Ollman the courts said that since a statement was on a

newspaper’s opinion pages, then an average reader was less likely to believe that the

statement is one of objective fact.” Rothschild v. Humility of Mary Health Partners, 2005-

Ohio-5481, ¶ 27 (7th Dist.). In this case, Major Frizzell made the statements at issue in

Case No. 2024-00507JD -8- DECISION

the context of being Chief of Security at a correctional institution and being tasked with

reviewing and investigating certain communications that Plaintiff had made to officials at

the institution. (Frizzell Affidavit, ¶ 3-4.) Major Frizzell was responsible for enforcing

institutional rules which forbid, among other things, threats of violence or the use of any

form of communication to threaten another. (Id. at ¶ 6-7.) Major Frizzell’s statements

appeared in the “Supporting Facts” section of a conduct report charging an inmate with

rules violations that would come before the institutional RIB for a hearing.

{¶20} Considering the totality of the circumstances, while the statements at issue

appear in the “Supporting Facts” section of the conduct report, it is apparent from the

general context of the statements that they were an expression of Major Frizzell’s opinion

about Plaintiff’s communications. Major Frizzell identified in the conduct report certain

communications by Plaintiff and then expressed his belief that those communications

amounted to a vague or implied threat. Plaintiff is incorrect in asserting that the Legal

Services Decision on Appeal disproves Major Frizzell’s subjective view that the underlying

communications amounted to a vague or implied threat, and Plaintiff does not otherwise

explain how that belief by Major Frizzell can be verified. Applying the factors, reasonable

minds can only conclude that Major Frizzell’s characterization of Plaintiff’s statements as

“threatening” was opinion, not an actionable statement of fact.

{¶21} Because there is no genuine issue of material fact that Plaintiff cannot show

that Major Frizzell made a false statement of fact, Plaintiff cannot prevail on his claim of

defamation.

{¶22} Defendant argues additionally that, even if it were assumed that Major

Frizzell’s statements were false and defamatory, the statements are not actionable

because they are protected by qualified privilege. “One of the defenses to a defamation

claim is one of qualified privilege, in which the interest that the defendant is seeking to

vindicate is conditioned upon publication in a reasonable manner and for a proper

purpose.” DeGarmo v. Worthington City Schools Bd. of Ed., 2013-Ohio-2518, ¶ 18 (10th

Dist.). “‘A qualified privilege is an affirmative defense to a claim of defamation.’” Hill v.

Ohio Dept. of Rehab. & Corr., 2021-Ohio-561, ¶ 17 (10th Dist.), quoting Morrison v.

Gugle, 142 Ohio App.3d 244, 258 (10th Dist. 2001).

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{¶23} Concerning the nature of communications subject to a qualified privilege, the

Tenth District Court of Appeals has explained:

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. Hahn v. Kotten (1975),

43 Ohio St.2d 237, 246, 331 N.E.2d 713 * * *. 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.

Fischer v. Kent State Univ., 2015-Ohio-3569, ¶ 25 (10th Dist.) (quotations omitted).

{¶24} “When alleged defamatory statements have occurred in a business context,

by someone whose job gives that person a legitimate interest in the matter, they are

subject to a qualified privilege when the circumstances exist or are reasonably believed

by the defendant to exist.” Brunsman v. W. Hills Country Club, 2003-Ohio-891, ¶ 23 (1st

Dist.).

{¶25} Defendant provided affidavit testimony that Major Frizzell is the Chief of

Security at Noble Correctional Institution. (Frizzell Affidavit, ¶ 3). In the course of his job

duties, Major Frizzell reviewed a kite that Plaintiff sent to the warden’s office, and he

subsequently met with Plaintiff because he had concerns that what Plaintiff wrote in the

kite constituted implied threats to the security of the institution. (Id. at ¶ 4-6.) After

meeting with Plaintiff, Major Frizzell interpreted Plaintiff’s written and oral communications

as a violation of institutional rules. (Id. at ¶ 6.) As a result, Major Frizzell authored the

conduct report at issue in this case; conduct reports are used to inform necessary staff of

rule violations and to maintain the safety and security of the institution. (Id. at ¶ 7.) When

submitting the conduct report, Major Frizzell “communicated only with necessary DRC

staff as required by DRC policy.” (Id. at ¶ 11.) To the best of his knowledge, Major Frizzell

has never made any untrue statements about Plaintiff. (Id. at ¶ 12.) According to Major

Frizzell, any statements he made about Plaintiff were part of his official duties and to

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maintain the safety and security of Noble Correctional Institution, and he denies acting

with malicious purpose. (Id. at ¶ 12-13.)

{¶26} Upon review, the evidence presented by Defendant demonstrates the

essential elements of a qualifiedly privileged communication, being that Major Frizzell

made the statements at issue in good faith, with an interest to be upheld (i.e. the security

of the correctional institution), the statements were limited in their scope to that purpose,

and they were made upon a proper occasion and published in a proper manner to proper

parties only. See Watley v. Ohio Dept. of Rehab. & Corr., 2008-Ohio-3691, ¶ 30 (10th

Dist.) (corrections officer’s statement in a conduct report were made in connection with

Defendant’s “interest and duty in ensuring the safety and security of the institution, its

prisoners, and its employees”).

{¶27} In response to Defendant’s Motion for Summary Judgment, Plaintiff argues

that “Defendant’s qualified privilege defense is forfeited by actual malice”. (Plaintiff’s

Response, p. 4.)

{¶28} “A qualified privilege may be defeated only by clear and convincing evidence

of actual malice on the part of the defendant.” Stainbrook v. Ohio Secy. of State, 2017-

Ohio-1526, ¶ 18 (10th Dist.). “‘In a qualified privilege case, “actual malice” is defined as

acting with knowledge that the statements are false or acting with reckless disregard as

to their truth or falsity.’” Jackson v. Columbus, 2008-Ohio-1041, ¶ 9, quoting Jacobs v.

Frank, 60 Ohio St.3d 111 (1991), paragraph two of the syllabus.

{¶29} “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.’ (Internal

citations omitted.)” Hill, 2021-Ohio-561, at ¶ 19 (10th Dist.), quoting Jackson 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 (10th Dist.), quoting Jacobs at 119, quoting

Dupler v. Mansfield Journal, 64 Ohio St.2d 116 (1980). “Evidence that establishes, at

best, the publisher ‘should have known’ of the alleged falsity of the statement is

insufficient to establish actual malice.” Varanese v. Gall, 35 Ohio St.3d 78, 82 (1988).