Opinion
Case No. 2018-00418JD
02-04-2020
ROBERT LEE MOORE Plaintiff v. DEPARTMENT OF REHABILITATION AND CORRECTION Defendant
DECISION OF THE MAGISTRATE
{¶1} Plaintiff, an inmate in the custody and control of defendant, brings this action for defamation arising out of a written conduct report authored by Keisha Chaney, who wrote that plaintiff was attempting to establish a relationship with her. The case proceeded to trial before the undersigned magistrate.
{¶2} At trial, plaintiff testified that while he was assigned to the Pickaway Correctional Institution (PCI), he worked as a painter. Plaintiff recalled that he was assigned to paint Chaney's office; plaintiff related that he had not completed the job prior to Chaney moving into the office. Plaintiff stated that he continued to paint the office after Chaney moved into the office and that Chaney remarked that plaintiff repeatedly made unreasonable appearances in her office. Plaintiff asserted that he had the sergeant's permission to paint the office.
{¶3} Plaintiff testified that in early April 2017, he along with several other inmates, were placed in segregation as a result of a threat against Chaney. Plaintiff explained that the threat to Chaney related to an anonymous kite, which is a written message used by inmates to communicate. Plaintiff added that his mail was also confiscated at that time. While in segregation, plaintiff commenced a hunger strike. Plaintiff related that on May 1, 2017, Chaney authored a conduct report accusing him of attempting to establish a relationship with her. Plaintiff emphasized that Chaney waited too long and lacked authority to write the conduct report.
{¶4} According to plaintiff, Richard Davis conducted an investigation into the allegations of the conduct report and kite and concluded that plaintiff had done nothing wrong. Plaintiff asserted that Davis informed him that everything would be "taken care of." Plaintiff believed that the conduct report was going to be withdrawn and that he was going to be released back into the general inmate population. However, plaintiff thereafter learned that he was required to appear before the Rules Infraction Board where he believed he would be found guilty of making a threat but not guilty of attempting to establish a relationship. Plaintiff was eventually transferred to a different institution.
{¶5} Keisha Chaney testified that she is employed as an administrative professional assigned to unit A at PCI. Chaney explained that she wrote an incident report dated April 28, 2017 as a result of plaintiff's general behavior around her during the preceding several months, although she was unable to recall specific dates on which the interactions occurred. Chaney stated that plaintiff repeatedly approached her over the course of several months and that she believed that he was attempting to establish a relationship with her. Chaney recalled that plaintiff repeatedly entered her office without excuse and on one occasion, plaintiff was wearing cologne. Chaney added that her job duties are such that she would have minimal contact with inmates. Chaney testified that the only contact plaintiff should have had with her involved him painting her office, but plaintiff continued to approach her.
Chaney referred to the report as an incident report whereas plaintiff referred to it as a conduct report. In this case, the distinction is immaterial and the words will be used interchangeably. --------
{¶6} Chaney learned of the anonymous kite about her and concluded that it was threatening in nature. Chaney related that the kite mentioned plaintiff's dress at work and accused her of forming inappropriate relationships with inmates. Chaney believed that plaintiff may have been the author inasmuch as she did not have much contact with other inmates and because of past interactions with plaintiff. Chaney added that plaintiff should not have been approaching her or interacting with her, and to her, it seemed like plaintiff was attempting to involve himself in her life.
{¶7} Richard Davis testified that he is employed as an investigator at PCI and is familiar with the investigation of plaintiff and Chaney. Davis recalled that he looked at the anonymous kite and compared it to handwriting samples in his possession. Davis was unable to conclusively establish a match. Davis also reviewed video relevant to Chaney's claims about plaintiff attempting to establish a relationship, but he was unable to find video to support such a claim. Davis stated, however, that he was able to confirm that plaintiff was in Chaney's office, but the video does not contain audio and he did not recall plaintiff painting at those times. Davis did not prepare a formal written report, but he concluded that he could not prove that plaintiff violated any rules by attempting to establish a personal relationship with Chaney. Davis clarified that he only determines whether he can substantiate allegations and that his findings do not prevent a staff member from writing a conduct report. Davis reported that the decision to transfer plaintiff to a different institution was made by the acting warden.
{¶8} "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, 117 Ohio St.3d 328, 2008-Ohio-1041, ¶ 9 (quoting A & B-Abell Elevator Co., Inc. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 7 (1995)). Defamation includes both slander, which refers to spoken defamatory words, and libel, which refers to written or printed defamatory words. Woods v. Capital Univ., 10th Dist. Franklin No. 09AP-166, 2009-Ohio-5672, ¶ 27, citing Matikas v. Univ. of Dayton, 152 Ohio App.3d 514, 2003-Ohio-1852, ¶ 27 (2d Dist.).
{¶9} In order to state a claim for defamation, a plaintiff must allege facts sufficient to establish: (1) a false statement; (2) about the plaintiff; (3) published without privilege to a third party; (4) with fault of at least negligence on the part of the defendant; and (5) the statement was either defamatory per se or caused special harm to the plaintiff. Watley v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 07AP-902, 2008-Ohio-3691, ¶ 26. Actionable defamation falls into one of two categories: defamation per se or defamation per quod. Woods at ¶ 28. To be actionable per se, an alleged defamatory statement must fall into one of four categories:
(1) the words import a charge of an indictable offense involving moral turpitude or infamous punishment; (2) the words impute some offensive or contagious disease calculated to deprive a person of society; (3) the words tend to injure a person in his trade or occupation; or (4) in cases of libel only, the words tend to subject a person to public hatred, ridicule, or contempt.Id. A statement is defamatory per quod if it can reasonably have two meanings, one innocent and one defamatory. Id. at ¶ 29. When the alleged defamatory statement is only actionable per quod, the plaintiff must also plead special damages. Am. Chemical Soc. v. Leadscope, Inc., 10th Dist. Franklin No. 08AP-1026, 2010-Ohio-2725, ¶ 51.
{¶10} "'Special damages are damages of such a nature that they do not follow as a necessary consequence of the claimed injury.'" Peters v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 14AP-1048, 2015-Ohio-2668, ¶ 7, quoting Mohican Ents. v. Aroma Design Group, Inc., 10th Dist. Franklin No. 96APE01-126, 1996 Ohio App. LEXIS 3929, 16 (Sept. 10, 1996). They are attributable to the conduct of persons other than the defamer or the one defamed. Peters at ¶ 7, citing Wilson v. Harvey, 164 Ohio App.3d 278, 2005-Ohio-5722, ¶ 24 (8th Dist.). (Internal citations omitted.) "'Special damages are those direct financial losses resulting from the plaintiff's impaired reputation.'" Peters at ¶ 7, quoting Hampton v. Dispatch Printing Co., 10th Dist. Franklin No. 87AP-1084, 1998 Ohio App. LEXIS 3757, 5. When items of special damage are claimed, they must be specifically stated. Civ.R. 9(G); Peters at ¶ 7.
{¶11} Upon review of the evidence, the magistrate concludes that plaintiff failed to prove his claim of defamation by a preponderance of the evidence. Plaintiff alleges that Chaney, in a written conduct report, falsely accused him of attempting to establish a relationship with her. However, plaintiff failed to prove an actionable case of defamation.
{¶12} Plaintiff failed to prove that the statement was defamatory per se or caused special harm to him. Chaney's allegation does not import a charge of an indictable offense, it does not impute some offensive or contagious disease, and it does not injure plaintiff in his trade or occupation. Plaintiff did not offer any evidence that the allegedly defamatory statement subjected him to public hatred, ridicule, or contempt. The allegation that plaintiff was attempting to establish a relationship with her can reasonably have two meanings: one innocent and the other defamatory. However, there has been no showing of special damages flowing from the allegedly defamatory statement.
{¶13} Moreover, even if plaintiff established that the statement somehow qualified as defamation, defendant established that it is entitled to a qualified privilege.
{¶14} "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. * * * 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 * * *. Further, the essential elements of a communication protected by qualified privilege are: [1] good faith, [2] an interest to be upheld, [3] a statement limited in its scope to this purpose, [4] a proper occasion, and [5] publication made in a proper manner and to proper parties only. Finally, if a defendant establishes all five elements for application of a qualified privilege, a plaintiff can defeat its application only by showing by clear and convincing evidence that the defendant acted with actual malice." (Internal citations omitted.) Mallory v. Ohio University, 10th Dist. Franklin No. 01AP-278, 2001-Ohio-8762, ¶ 21-22.
{¶15} The only evidence presented established that Chaney made the statement in good faith, with an interest to be upheld, for a limited purpose, and on a proper occasion. Additionally, it was established that it was made in a proper manner to proper parties. Plaintiff disputes the truthfulness of the written conduct report, i.e., that he was attempting to establish a relationship with Chaney. However, the only evidence presented establishes that Chaney's statement is protected by a qualified privilege.
{¶16} "A qualified privilege may be defeated only by clear and convincing evidence of actual malice on the part of the defendant. Jacobs v. Frank, 60 Ohio St.3d 111, 114-115 (1991). 'Actual malice' is defined as 'acting with knowledge that the statements are false or acting with reckless disregard as to their truth or falsity.' Id. at 116. 'Reckless disregard' is demonstrated by presenting 'sufficient evidence to permit a finding that the defendant had serious doubts as to the truth of [its] publication.'" Watley at ¶ 32
{¶17} Plaintiff, however, failed to offer any evidence that Chaney made the allegedly defamatory statement with actual malice.
{¶18} Based upon the forgoing, the magistrate recommends that judgment be entered in favor of defendant.
{¶19} A party may file written objections to the magistrate's decision within 14 days of the filing of the decision, whether or not the court has adopted the decision during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections, any other party may also file objections not later than ten days after the first objections are filed. A party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion within 14 days of the filing of the decision, as required by Civ.R. 53(D)(3)(b).
/s/_________
GARY PETERSON
Magistrate Filed February 4, 2020
Sent to S.C. Reporter 6/3/20