Rarden v. Ohio Dept. of Rehab. & Corr.Rarden v. Ohio Dept. of Rehab. & Corr.
Rendered on December 4, 2012
Lonnie Rarden, pro se.
Michael DeWine, Attorney General, and Ashley L. Oliker, for appellee.
APPEALS from the Court of Claims of Ohio
BRYANT, J.
{¶ 1} Plaintiff-appellant, Lonnie Rarden, appeals from judgments of the Court of Claims of Ohio granting summary judgment to defendant-appellee, Ohio Department of Rehabilitation and Correction (“ODRC“), on plaintiff‘s defamation claims against defendant. Because plaintiff failed to provide evidence of a genuine issue of material fact to be resolved at trial, we affirm.
I. Facts and Procedural History
A. The Complaints
{¶ 3} In his complaint concerning Loesche, plaintiff asserted that he never had been part of the prison 4-Paws program but on July 25, 2010 requested that Case Manager Loesche place him into the program. According to the complaint, she responded she could not due to central office criteria stating that past or present sex offenders were not allowed into the program. Plaintiff asserted no such criteria was in place.
{¶ 4} The complaint further alleged that officers nonetheless continued to bring dogs to him because they liked the manner in which he handled them. Plaintiff alleged that by July 8, 2011, Loesche became disgruntled with plaintiff, approached each officer she knew to be bringing their dogs to plaintiff, and told them plaintiff was not to be watching their dogs because he was convicted of raping a 13-year-old girl. According to the complaint, Loesche then told the block officers the same thing and conveyed the same sentiments to several inmates at the institution.
{¶ 5} Plaintiff‘s complaint stated that, contrary to Loesche‘s statements, he never was arrested for any rape charge, but some staff and inmates believed Loesche‘s false statement. The complaint alleged that, as a result of Loesche‘s statement, plaintiff suffered damage to his reputation as a model prisoner and is now subject to resentment, ridicule, hatred, humiliation, and embarrassment for which the complaint sought monetary damages. ODRC responded with an answer on October 4, 2011 denying the pertinent allegations of the complaint.
{¶ 6} Plaintiff‘s complaint against Burton is similar and contended a dispute arose over dog handling that ultimately led to Burton‘s filing a conduct report. The complaint alleged Burton‘s report falsely informed others that plaintiff threatened bodily harm to Burton, a statement both staff and inmates believed. According to the complaint, plaintiff suffered resentment, ridicule, hatred, humiliation, and embarrassment as a result of Burton‘s false statements, causing “[p]laintiff great pain of mind and body and emotional distress” for which plaintiff sought monetary damages. (Complaint, at ¶ 5.) ORDC responded with an answer on October 5, 2011 denying the pertinent allegations of the complaint.
B. ODRC‘s Summary Judgment Motions and Affidavits
{¶ 8} On January 11, 2012, ODRC filed motions for summary judgment in both cases; the court, by entry dated January 18, 2012, scheduled a non-oral hearing on the motions for February 8, 2012, at which time the motions would be considered on the documents. Accompanying the motions were the affidavits of Loesche and Burton.
{¶ 9} Loesche‘s affidavit stated that, at the time of the incident described in plaintiff‘s complaint, ODRC employed her full time as a case manager at the Warren Correctional Institution in Lebanon, Ohio where she also was responsible for implementing the 4-Paws prison program. She stated she, in that role, was responsible for selecting qualified inmates to participate in this program and was required to adhere to certain criteria in the selection process. According to her affidavit, plaintiff was ineligible to participate in the program due to his past offenses.
{¶ 10} The affidavit further stated that, although he was ineligible, plaintiff continued to handle dogs in violation of the institutional rules. Pursuant to her duties, she averred, she informed specific officers that plaintiff was not eligible for the dog program and should no longer be handling dogs. Her affidavit, however, stated she never told the officers plaintiff was convicted of raping a 13-year-old girl and made no untrue statement about plaintiff or his past criminal convictions. She lastly averred that any statements made about plaintiff‘s ineligibility were made in good faith and with a reasonable belief they were true, and she made them as part of her role as facilitator for the program and with the interest of properly implementing the program.
{¶ 11} Burton‘s affidavit similarly stated he made no untrue statement about plaintiff in the conduct report and believed plaintiff violated inmate rules when Burton
C. Plaintiff‘s Response and the Court‘s Decision
{¶ 12} Plaintiff filed his response to ODRC‘s summary judgment motions on January 30, 2012. Plaintiff first argued ODRC was not entitled to any relief under
{¶ 13} With his response involving Loesche, plaintiff attached a document entitled “Affidavit” to which plaintiff noted he swore under penalty of perjury; the document is not notarized. In it, plaintiff stated he was an inmate and Loesche was an employee with ODRC at the time of the incidents specified in the complaint. The document said Loesche told several officers and inmates that plaintiff should not handle any dogs because he was convicted of raping a 13-year-old girl. The following paragraph of the document stated: “That is not true, I have never been charged or convicted of a Rape case in my life.” (“Affidavit,” at ¶ 6.) The document further asserted ODRC policies did not prevent him from handling staff dogs and Loesche‘s statements to the contrary were negligent and not made in good faith. Plaintiff‘s final paragraph stated that because he was in isolation, he could not obtain any affidavits from any witnesses.
{¶ 14} Similarly, attached to his memorandum opposing Burton‘s summary judgment motion is plaintiff‘s “Affidavit,” sworn to but not notarized. The document stated that after the dispute over the dogs, plaintiff commented to Burton: “Oh. Are we going to Play by the Rules today burton.” (“Affidavit,” at ¶ 8.) According to the document, Burton then motioned for plaintiff to come to him, placed plaintiff on the wall, handcuffed him, and sent him to isolation. The document said a shift supervisor investigated the incident and let plaintiff out of isolation two hours later. Plaintiff‘s final paragraph stated that because he was in isolation, he could not obtain any affidavits from any witnesses.
{¶ 15} In responding to plaintiff‘s memorandum opposing its summary judgment motions, ODRC pointed to
{¶ 16} To support the latter reason, ODRC attached the affidavit of J. Maggard, a sergeant charged with overseeing inmates in segregation. According to his affidavit, Maggard conducted weekly rounds of all inmates in segregation to check on them; he stated that, since he is a notary and had the ability to notarize an affidavit or document, he could provide notary services to an inmate in segregation. Pointing to other options available to inmates in segregation, ODRC contended plaintiff‘s failure to supply the required evidentiary materials under
{¶ 17} On February 22 and March 2, 2012, the Court of Claims filed entries granting ODRC‘s summary judgment motions. After defining defamation, the court turned to the affidavits of Loesche and Burton. In opposition to ODRC‘s motions, the court noted, plaintiff filed what purports to be his own affidavit, but the document is not sworn and notarized and therefore is not a proper affidavit. Acknowledging plaintiff‘s contention that he was unable to have documents notarized or to obtain affidavits because he was in isolation, the court pointed to the affidavit of Maggard who stated that he regularly made rounds and made himself available to notarize documents for inmates housed in an isolation unit, but plaintiff never requested he notarize any documents either in prison or through the kite system.
{¶ 18} Given Loesche‘s and Burton‘s undisputed affidavit testimony, the Court of Claims determined neither Loesche nor Burton uttered the allegedly defamatory statements. With that, the court concluded no genuine issues of material fact remained for trial and granted ODRC‘s summary judgment motions.
{¶ 19} Plaintiff filed notices of appeal on March 12, 2012 from the court‘s final judgments granting summary judgment; on the same day, he filed motions “to Arrest
II. Assignments of Error
{¶ 20} On appeal, plaintiff assigns two errors:
FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT ERRORED [sic] WHEN IT GRANTED DEFENDANT‘S MOTION FOR SUMMARY JUDGMENT WHEN DEFENDANT FAILED TO COMPLY WITH THE PROCEDURES SET FORTH IN CIVIL RULE 56.
SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT ERRORED [sic] WHEN IT DENIED PLAINTIFF/APPELLANT‘S MOTION FOR RECONSIDERATION.
{¶ 21} An appellate court‘s review of summary judgment is conducted under a de novo standard. Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995); Koos v. Cent. Ohio Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994). Summary judgment is proper only when the party moving for summary judgment demonstrates: (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could 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 most strongly construed in its favor.
{¶ 22} Pursuant to
III. First Assignment of Error - Summary Judgment under Civ.R. 56
{¶ 23} Plaintiff presents three issues under his first assignment of error: (1) whether ODRC could seek summary judgment without first requesting leave from the Court of Claims, (2) whether the Court of Claims erred in granting summary judgment to ODRC when ODRC did not demonstrate any specific evidence to support the motion, and (3) whether the Court of Claims erred in concluding affidavits were necessary to respond to ODRC‘s summary judgment motions.
A. Leave of Court
{¶ 24} Plaintiff initially contends ODRC could not file summary judgment motions without leave of court. Plaintiff correctly cites
{¶ 25} Here, the Court of Claims early in the case set a case management schedule. Pursuant to that schedule, trial was set for April 12, 2012. The schedule also specified that any dispositive motions should be filed on or before January 12, 2012. ODRC filed its summary judgment motions on January 11, 2012. Where, as here, a trial court sets a deadline to file dispositive motions, the court implicitly grants leave to file such motions before that deadline, even if the court has established a trial date. Stark v. Govt. Accounting Solutions, Inc., 10th Dist. No. 08AP-987, 2009-Ohio-5201, ¶ 36. Although anything filed after January 12, 2012 would have required leave of court, ODRC filed within the parameters the Court of Claims established and thus complied with the Ohio Civil Rules; no leave of court was necessary.
B. Specific Evidence Supporting Summary Judgment
{¶ 27} “To establish defamation, the plaintiff must show (1) that a false statement of fact was made, (2) that the statement was defamatory, (3) that the statement was published, (4) that the plaintiff suffered injury as a proximate result of the publication, and (5) that the defendant acted with the required degree of fault in publishing the statement.” Pollock v. Rashid, 117 Ohio App.3d 361, 368 (1st Dist.1996).
{¶ 28} ODRC chose to refute plaintiff‘s allegations of defamation by showing that the statements made were not false. Accordingly, Loesche in her affidavit averred, “I have not made any untrue statement about Mr. Rarden or his past criminal convictions.” (Affidavit, at ¶ 11.) Similarly, Burton‘s affidavit stated that he “did not make any untrue statements about Mr. Rarden in the August 4, 2011 Conduct Report.” (Affidavit, at ¶ 17.) ODRC thus was not forced to rely on plaintiff‘s responses to ODRC‘s discovery requests to support its summary judgment motions on plaintiff‘s defamation claims. Rather than rely on any potential admissions that might result from plaintiff‘s responses to ODRC‘s discovery requests, ODRC relied on the affidavits of its employees, the ones who plaintiff alleged defamed him.
{¶ 29} Faced with those averments, plaintiff was required to respond with evidence admissible under
{¶ 30} In the end, the Court of Claims was faced with affidavits from Loesche and Burton undermining plaintiff‘s defamation claim by clearly stating they made no false statement about plaintiff. Plaintiff failed to respond with the necessary evidence to create a genuine issue of material fact. The Court of Claims properly granted ODRC‘s summary judgment motions.
C. Plaintiff‘s Need for Affidavit Evidence
{¶ 31} Plaintiff‘s third issue under his first assignment of error asserts the Court of Claims wrongly concluded plaintiff needed affidavit evidence to respond to ODRC‘s summary judgment motions. Plaintiff, in essence, contends ODRC‘s summary judgment motions simply asserted plaintiff had no evidence to support his cases. Plaintiff argues such is insufficient under Dresher to support ODRC‘s summary judgment motions and shift the burden to plaintiff to present evidence creating a genuine issue of material fact for trial.
{¶ 32} Contrary to plaintiff‘s contentions, ODRC presented evidence apart from pointing to plaintiff‘s lack of evidence; it supplied the affidavits of Loesche and Burton. In doing so, it refuted plaintiff‘s defamation claim and forced plaintiff to come forward with evidence demonstrating that a genuine issue of material fact remained to be litigated.
{¶ 33} To the extent plaintiff contends he lacked adequate discovery opportunity to prepare for summary judgment, “[t]he remedy for a party that must respond to a motion for summary judgment prior to completion of adequate discovery is to file a motion, pursuant to
{¶ 34} Plaintiff failed to comply with
{¶ 35} Accordingly, plaintiff‘s first assignment of error is overruled.
IV. Second Assignment of Error - Motion for Reconsideration
{¶ 36} After the Court of Claims entered judgments for ODRC pursuant to ODRC‘s summary judgment motions, plaintiff filed in the Court of Claims in each case a “Motion to Arrest Judgment Pursuant to
{¶ 37} To the extent plaintiff sought reconsideration, his motions fail. A motion for reconsideration filed after a final judgment is considered a legal nullity. Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378 (1981), paragraph one of the syllabus; Wiltz v. Clark Schaefer Hackett & Co., 10th Dist. No. 11AP-64, 2011-Ohio-5616, ¶ 37.
{¶ 38} Moreover, to the extent plaintiff sought review under
{¶ 39} Plaintiff‘s second assignment of error is overruled.
V. Disposition
{¶ 40} Having overruled both of plaintiff‘s assigned errors, we affirm the judgments of the Court of Claims of Ohio.
Judgments affirmed.
TYACK and FRENCH, JJ., concur.