[Cite as Scott v. Ohio Dept. of Rehab. & Corr., 2023-Ohio-1647.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Anthony A. Scott, :

Plaintiff-Appellant, :

No. 22AP-387

v. : (Ct. of Cl. No. 2020-00164JD)

Ohio Department of Rehabilitation : (REGULAR CALENDAR)

and Correction,

:

Defendant-Appellee.

:

D E C I S I O N

Rendered on May 16, 2023 

On brief: Anthony A. Scott, pro se. 

On brief: Dave Yost, Attorney General, and Stacy Hannan,

for appellee. 

APPEAL from the Court of Claims of Ohio

LELAND, J.

{¶ 1} Plaintiff-appellant, Anthony A. Scott, acting pro se, appeals from a judgment 

of the Court of Claims of Ohio holding in favor of defendant-appellee, the Ohio Department 

of Rehabilitation and Correction (“ODRC”), on appellant’s defamation claim. For the 

reasons that follow, we affirm.

I. Facts and Procedural History

{¶ 2} Appellant, an inmate in the custody of ODRC, brought an action for 

defamation against ODRC arising out of an allegedly false accusation that appellant was 

involved with a drug distribution network, or “drug ring,” at Noble Correctional Institution 

(“NCI”). Appellant alleged that because of the false accusation he was convicted of various 

rule violations by the internal Rules Infractions Board (“RIB”) and, as a result, was 
No. 22AP-387 2

transferred to a “more dangerous prison” and has false charges on his prison record. 

(July 6, 2020 Am. Compl. at 2.)

{¶ 3} The Court of Claims held a trial on the matter before a magistrate on 

January 27, 2022. The magistrate issued a decision including findings of fact and 

conclusions of law. According to the magistrate’s findings of fact, Jared McGilton, an NCI 

institutional inspector for 8 years responsible for conducting administrative investigations 

of criminal activity at NCI, commenced an investigation concerning drug activity at NCI at 

the end of 2015 or the beginning of 2016 involving approximately 8 to 12 inmates as 

suspects.

{¶ 4} McGilton testified that appellant was not the primary target of the 

investigation or what McGilton considered the “main facilitator[].” (Mag.’s Decision at 2.) 

However, McGilton learned from an informant that drugs were being “passed through the 

fence and ‘Bama’ in the chapel was picking them up.” (Mag.’s Decision at 1.) According to 

McGilton, he gathered job descriptions of offenders at NCI and determined that appellant

worked in the chapel at the time and is originally from Alabama. McGilton asserted that he

then searched mail and “JPay communications” at the prison and determined that 

appellant was also known as Bama. (Mag.’s Decision at 2.) McGilton reviewed video 

surveillance of offenders moving in and out of recreation and noticed that appellant was 

meeting with many of the individuals involved in the investigation.

{¶ 5} McGilton also “informally spoke” with chapel staff and learned that at the

back of the chapel there was an emergency door that could be opened by any individual on 

the inside of the chapel. (Mag.’s Decision at 2.) Immediately outside that emergency door 

is an outdoor visitation area, and the chapel and the outdoor visitation area are separated

by a chain link fence. According to McGilton, when standing at the officer’s desk, the 

emergency door is not visible: the officer’s desk is located at the far-left corner of the chapel,

about 40 to 50 feet away. McGilton determined that appellant “had access to the emergency

door and had the opportunity to retrieve a package passed through the fence.” (Mag.’s 

Decision at 2.) 

{¶ 6} McGilton believed that appellant “would take the package to the staff 

restroom in the chapel and break the drugs down to distribute throughout the institution.”
No. 22AP-387 3

(Mag.’s Decision at 2.) However, McGilton was aware that appellant’s job duties did not

consist of cleaning the restroom in the chapel and conceded that he did not personally 

witness, nor did he have surveillance video of appellant performing any activities as 

described above.

{¶ 7} Based on his investigation, McGilton authored a conduct report stating 

appellant was one of multiple individuals operating an illegal drug conveyance network in 

NCI. The conduct report asserts appellant’s role in the network was to retrieve packages of 

illegal drugs left by the exterior chapel door and then hide, repackage, and distribute the 

drugs for profit. The report also states appellant would launder the money through 

“Cashapp.” (Mag.’s Decision at 3.) McGilton ultimately charged appellant with violations 

of rules 40, 45, and 60, recited by the magistrate as follows:

Procuring or attempting to procure, unauthorized drugs, 

aiding, soliciting, or collaborating with another to procure 

unauthorized drugs or to introduce unauthorized drugs into a 

correctional facility; Dealing, conducting, facilitating, or 

participating in any transaction, occurring in whole or in part, 

within an institution, or involving an inmate, staff member or 

another for which payment of any kind is made, promised, or 

expected; Attempting to commit; aiding another in the 

commission of soliciting another to commit; or entering into an 

agreement with another to commit any of the above acts. 

(Mag.’s Decision at 3.)

 

{¶ 8} According to McGilton, nine individuals were administratively charged for

being involved in the network. McGilton admitted he never found drugs on any of the 

offenders. With respect to the claim in the conduct report that appellant would launder 

money, McGilton testified that at the time he wrote the statement, he had information 

connecting appellant to money laundering through Cashapp, but the evidence for that 

statement is no longer in his file. He conceded that the allegation may also have been 

intended for a different offender but testified that, regardless, the rule violation charges for 

appellant would not have changed. Overall, McGilton “believed his statements in the 

conduct report to be true when he wrote them[,]” and he “continue[d] to believe the 

statements in the conduct report to be true” at the time of trial. (Mag.’s Decision at 3-4.) 

Although McGilton believed the evidence supported the administrative charges, McGilton 
No. 22AP-387 4

personally did not believe the evidence collected supported a finding beyond a reasonable 

doubt to maintain a criminal conviction. None of the individuals he investigated were

criminally charged.

{¶ 9} McGilton explained the process that occurs after a conduct report is issued. 

The report “is sent to a hearing officer who then sends it to the Rules Infraction Board 

(RIB),” a hearing is held, and RIB reviews the evidence and decides guilt. (Mag.’s Decision 

at 4.) “After the RIB decision, a security review is conducted by unit staff, and if an offender 

meets the criteria for a security change, the recommendation is sent to [ODRC’s] central 

office for approval or disapproval and potential placement in a different institution.”

(Mag.’s Decision at 4.) An appeal of the RIB decision may be taken to the warden.

{¶ 10} According to McGilton, he provided his investigative file to RIB but he does

not sit on RIB, participate in appellant’s appeal to the warden (which was unsuccessful), or

otherwise involve himself in the disciplinary proceedings. “McGilton testified that the RIB 

relied on confidential informant statements, but he could not explain why the RIB failed to

indicate that it relied on confidential informant statements.” (Mag.’s Decision at 4.) 

{¶ 11} Regarding distribution of the conduct report, McGilton explained that “the 

conduct report is uploaded into [ODRC’s] internal * * * portal, a tracking system for 

offenders” and that “[o]nce the conduct report is in the portal, any employee of[ODRC] can

look up the administrative charges related to an offender”; anyone who accesses the file is 

tracked and recorded. (Mag.’s Decision at 4.) According to McGilton, inmates do not have 

access to the portal and McGilton did not show a copy of the conduct report to any inmates. 

{¶ 12} The Chaplin at NCI, a corrections officer assigned to work security in the 

chapel, and appellant also testified at trial before the magistrate. The Chaplin confirmed 

appellant had worked in the chapel as a librarian for a few years, mainly stayed at the desk, 

and was not tasked with cleaning the staff restroom. The corrections officer testified that 

appellant usually worked in the afternoon beginning at 1:00 p.m. and recalled that 

appellant was the librarian and did not use the staff restroom in the chapel. According to 

appellant, he worked in the chapel at NCI for a couple of years and while there, “never had 

access to the staff restroom,” which he asserted remained locked until a staff member 

unlocked it, and “never had access to” or “went out” the exterior chapel door. (Mag.’s 
No. 22AP-387 5

Decision at 5.) Appellant also contended he had never been called or known as “Bama.”

(Mag.’s Decision at 5.) Appellant acknowledged that the conviction for which he is 

incarcerated was for possession of drugs and drug trafficking.

{¶ 13} Based on the evidence submitted, the magistrate concluded that appellant 

failed to prove his claim of defamation. Specifically, the magistrate determined that 

although appellant for purposes of the decision established a prima facie case of defamation 

per se, ODRC established the conduct report is protected by qualified privilege, and 

appellant did not demonstrate, by clear and convincing evidence, actual malice to defeat 

the qualified privilege on the facts of this case. In doing so, the magistrate found McGilton 

testified credibly as to the genesis of the investigation, the evolution of the investigation,

and its ultimate conclusion, which led McGilton to publish the statements in the conduct 

report.

{¶ 14} Appellant filed three objections to the magistrate’s decision: (1) “The 

Magistrate Judge erred in its decision finding that the Defendant’s [sic] was protected by 

qualified privilege”; (2) “The Magistrate Judge erred in its decision finding that the Plaintiff 

did not establish malice and that the Defendant did not published [sic] the conduct report 

with reckless disregard to its truth or falsity”; and (3) “The Magistrate Judge erred to the 

prejudice of the Plaintiff by bolstering the Defendant’s credibility as to the evidence which 

ultimately caused the Magistrate to unfairly decided [sic] in the Defendant’s favor.” 

(Apr. 20, 2022 Objs. at 1, 7, 14.)

{¶ 15} The Court of Claims overruled appellant’s objections and adopted the 

magistrate’s decision as its own. In doing so, the Court of Claims first explained that it must 

accept the magistrate’s finding of facts and limit its review to the magistrate’s legal 

conclusions because appellant failed to provide a transcript of the evidence to support his 

objections or an affidavit of evidence as required by Civ.R. 53(D)(3)(b). The Court of Claims

then determined that under the facts of this case there is “no basis to modify” the 

magistrate’s conclusion that the accusations in the conduct report were protected by a

qualified privilege, and that the magistrate appropriately applied the law in determining 

appellant failed to meet his burden in demonstrating ODRC acted with actual malice. 

(Jgmt. Entry at 3.) Therefore, “[a]ccepting the magistrate’s findings of fact,” the Court of 
No. 22AP-387 6

Claims held that the magistrate appropriately applied the law. (Jgmt. Entry at 5.) The 

Court of Claims accordingly rendered judgment in favor of ODRC. 

II. Assignments of Error

{¶ 16} Appellant assigns the following three assignments of error for our review:

[I.] THE COURT OF CLAIMS ERRED AND ABUSED ITS 

DISCRETION WHEN IT FAILED TO DISPOSE OF ALL OF 

PLAINTIFF’S TIMELY FILED OBJECTIONS PURSUANT TO 

OHIO CIV.R. 53(D)(4)(D) THEREBY DIVESTING THIS 

COURT OF ITS JURISDICTION.

[II.] THE COURT OF CLAIMS ERRED WHEN IT 

OVERRULED THE PLAINTIFF’S FIRST OBJECTION 

FINDING THAT THE DEFENDANT WAS PROTECTED BY 

QUALIFIED PRIVILEGE.

[III.] THE TRIAL COURT ERRED WHEN IT OVERRULED 

THE PLAINTIFF’S SECOND OBJECTION FINDING THAT 

THE PLAINTIFF FAILED TO SHOW MALICE ON THE 

CLAIM OF DEFAMATION.

III. Analysis

{¶ 17} With his assignments of error, appellant essentially challenges two aspects 

of the Court of Claims’ decision: (1) a procedural issue concerning whether the Court of 

Claims sufficiently addressed and ruled on his objections to the magistrate’s decision; and

(2) the merits of the Court of Claims holding in favor of ODRC on the defamation claim

based on the conclusion that a qualified privilege protected the conduct report and 

appellant failed to show actual malice to defeat that privilege. For the reasons that follow, 

we disagree with appellant on both fronts, and instead hold that the Court of Claims issued 

a final, appealable order that properly held in favor of ODRC on the merits of appellant’s 

defamation claim.

A. First Assignment of Error – Court of Claims’ Ruling on Objections 

under Civ.R. 53(D)(4)(d)

{¶ 18} In his first assignment of error, appellant asserts the Court of Claims erred 

and abused its discretion when it failed to dispose of each of his objections to the 

magistrate’s decision, pursuant to Civ.R. 53(D)(4)(d), and that, as a result, this court does 
No. 22AP-387 7

not have jurisdiction over the appeal. As explained further below, because the Court of 

Claims did expressly overrule appellant’s objections, adopt the magistrate’s decision, and 

enter judgment, it is a final, appealable order and this court does have jurisdiction. Further, 

to the extent appellant argues the Court of Claims erred by inadequately addressing

appellant’s third objection (in essence requiring reversal rather than dismissal), such an 

error was harmless on the facts of this case since the third objection involved a credibility 

issue that could not be reviewed due to the lack of a transcript. 

{¶ 19} The Ohio Constitution limits the jurisdiction of courts of appeal to the review 

of final orders. Article IV, Section 3(B)(2) of the Ohio Constitution. “If the order is not a 

final appealable order, we lack jurisdiction and must dismiss the appeal.” G. Scottco Invest. 

Co. v. Korleski, 10th Dist. No. 10AP-582, 2011-Ohio-6656, ¶ 7. 

{¶ 20} “Civ.R. 53(D)(4) governs action on a magistrate’s decision and sets out a trial 

court’s obligations when faced with objections to a magistrate’s decision.” Community 

Properties of Ohio Mgt. v. Smith, 10th Dist. No. 22AP-322, 2023-Ohio-540, ¶ 11. Pursuant 

to Civ.R. 53(D)(4)(d), “[i]f one or more objections to a magistrate’s decision are timely 

filed, the court shall rule on those objections.” Further, “[i]n ruling on objections, the court 

shall undertake an independent review as to the objected matters to ascertain that the 

magistrate has properly determined the factual issues and appropriately applied the law.”

Civ.R. 53(D)(4)(d). “This rule imposes a mandatory duty on the court to dispose of a party’s 

objections to a magistrate’s report.” Drummond v. Drummond, 10th Dist. No. 02AP-700, 

2003-Ohio-587, ¶ 13. “[A]n appellate court may not address an appeal of a trial court’s 

judgment when the trial court has failed to rule on properly filed objections.” Id.

{¶ 21} Here, the judgment entry appealed by appellant states:

Upon review of the record, the magistrate’s decision and the 

objections, the court finds that the magistrate has properly 

determined the factual issues and appropriately applied the 

law. Therefore, the objections are OVERRULED and the court 

adopts the magistrate’s decision and recommendation as its 

own, including findings of fact and conclusions of law therein. 

Judgment is rendered in favor of defendant.

(Emphasis sic.) (Jgmt. Entry at 5.) Preceding this statement, the trial court expressly 

analyzed appellant’s first two objections (concerning qualified privilege and actual malice) 
No. 22AP-387 8

but did not comment specifically on the third objection (concerning McGilton’s credibility). 

The Court of Claims’ analysis of appellant’s second and third objections incorporated the 

magistrate’s determination that “McGilton credibly testified” on multiple matters. (Jgmt. 

Entry at 3, 4.) 

{¶ 22} Appellant cites to Drummond for the proposition that no final, appealable

order exists in this case. However, in Drummond, the trial court’s determination that a

final order did not yet exist was based on the fact the trial court had not ruled upon 

appellant’s objections entirely. Id. at ¶ 12 (dismissing the appeal where the trial court 

adopted the magistrate’s decision the same day it was issued and failed to rule on 

subsequently filed timely objections). See also Korleski at ¶ 9 (determining the appeal was

taken from an order that was not a final and appealable where the trial court “did not 

consider or in any way reference the State’s timely-filed objections to the magistrate’s 

report”). The Drummond holding, and similar cases, thus do not cover the situation here

where the Court of Claims expressly overruled appellant’s objections, adopted the 

magistrate’s decision, and rendered judgment but did not delineate a separate written

analysis for one of the objections.

{¶ 23} A recent case from this court, Ohio Dept. of Taxation v. Barney, 10th Dist. 

No. 21AP-461, 2023-Ohio-636, ¶ 15, provides guidance in the context of a closer fact pattern 

to this case. Barney acknowledged that this court has “recognized an alternative to 

dismissal” in certain cases, explaining, “ ‘where the appellate court can identify some 

reference to the trial court’s consideration of objections, appellate courts have found 

support for the notion that we should presume that a trial court has ruled on objections.’ ”

Id., quoting In re J.V., 10th Dist. No. 04AP-621, 2005-Ohio-4925, ¶ 23, citing H.L.S. 

Bonding Co. v. Fox, 10th Dist. No. 03AP-150, 2004-Ohio-547, ¶ 8-9 (presuming the trial 

court overruled appellant’s objections where the trial court “reviewed” the parties’

objections and modified the magistrate’s decision); and Shaffer v. Shaffer, 109 Ohio 

App.3d 205, 212 (3d.Dist.1996)(presuming trial court overruled objections where the court 

had made a “cursory” reference to the objections). 

{¶ 24} Considering this precedent, the court in Barney determined the judgment 

entry in that case left “little doubt” the appellant’s objections were considered since the trial 
No. 22AP-387 9

court issued a judgment entry stating it adopted the magistrate’s decision and “ ‘overrul[ed]

objections[,]’ ” the entry “evidence[d] consideration of appellant’s objections[,]” and the 

trial court’s key finding “effectively disposed of appellant’s objections.” (Emphasis sic.) Id.

at ¶ 17. Nevertheless, the Barney court determined the entry in that case did not constitute 

a final, appealable order since the trial court failed to enter judgment. Id. at ¶ 20-21.

{¶ 25} Here, similar to Barney, the Court of Claims expressly overruled appellant’s 

objections and adopted the magistrate’s decision, and in doing so made a determination on 

the first two objections in favor of ODRC on the merits of the defamation claim that 

effectively disposed of appellant’s third objection challenging McGilton’s credibility. 

Further, unlike in Barney, the entry in this case entered judgment in favor of ODRC. 

Considering all the above, the Court of Claims’ judgment is a final, appealable order and 

this court does have jurisdiction to review the appeal. 

{¶ 26} Lastly, while the Court of Claims’ judgment does enough to establish a final,

appealable order, appellant’s first assignment of error implicitly raises the issue of whether 

the Court of Claims committed a reversible error due to an insufficient analysis. Even if,

for the sake of argument, appellant is correct that the Court of Claims erred by not providing 

an analysis for the third objection, such an error would be harmless on the facts of this case. 

Appellant’s third objection asked the Court of Claims to assess the credibility of the 

evidence and reweigh the evidence—tasks the Court of Claims could not do given there was 

no transcript before them. See Reid v. Shaffer, 10th Dist. No. 19AP-765, 2020-Ohio-5448, 

¶ 25 and cited cases (“[m]oreover, we have already found the substance of the objections 

were tied to factual findings in need of a transcript to review: appellate courts, including 

this one, have found that a trial court acts within its discretion in overruling or dismissing 

the objections”); Martin v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 07AP-1006, 2008-

Ohio-3166, ¶ 10 (“If a transcript is not provided, the trial court cannot make a credibility 

determination regarding the evidence presented to the magistrate, and is therefore 

required to accept the findings of fact and consider only whether the evidence supported 

the magistrate’s findings.”).

{¶ 27} Accordingly, for all the above stated reasons and on the facts of this case, 

appellant’s first assignment of error is overruled.
No. 22AP-387 10

B. Second and Third Assignments of Error – Showings of Qualified 

Privilege and Actual Malice on the Defamation Claim

{¶ 28} Appellant’s second and third assignments of error challenge the Court of 

Claims’ decision to overrule his objections challenging the magistrate’s determination that

ODRC prevailed on the merits of the defamation claim. For clarity of discussion, we will 

address the second and third assignments of error together. 

{¶ 29} Generally, an appellate court reviews a trial court’s adoption of a magistrate’s 

decision for an abuse of discretion. Smith at ¶ 13, citing McNeilan v. Ohio State Univ. Med. 

Ctr., 10th Dist. No. 10AP-472, 2011-Ohio-678, ¶ 19. However, our standard of review is 

even more limited where the trial court reviewing a magistrate’s decision does not have the 

benefit of a transcript or affidavit. “On appeal of a judgment rendered without the benefit 

of a transcript or affidavit, an appellate court only considers whether the trial court correctly 

applied the law to the magistrate’s factual findings.” Triplett v. Warren Corr. Inst., 10th 

Dist. No. 12AP-728, 2013-Ohio-2743, ¶ 13. Moreover, an appellate court is precluded from 

considering a transcript provided on appeal that the trial court did not have the opportunity 

to review before determining whether to adopt the magistrate’s decision. Ross v. Cockburn, 

10th Dist. No. 07AP-967, 2008-Ohio-3522, ¶ 6. Therefore, even though in this case 

appellant provided the transcript on appeal, we may not review it since it was not provided 

to the Court of Claims. Moreover, we are confined to determining whether the Court of 

Claims correctly applied the law to the magistrate’s factual findings in holding ODRC

established a qualified privilege to the defamation claim and appellant failed to defeat the 

qualified privilege by showing actual malice.

{¶ 30} “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. v. Columbus/Cent. Ohio Bldg. 

& Const. Trades Council, 73 Ohio St.3d 1, 7 (1995). “If a claimant establishes a prima facie 

case of defamation, a defendant may then invoke a conditional or qualified privilege.”
No. 22AP-387 11

Jackson at ¶ 9. A qualified privilege can then be defeated by a clear and convincing showing 

that the communication was made with “actual malice.” A & B-Abell at 11.

{¶ 31} Here, appellant first contends the Court of Claims erred when it overruled his

objection challenging the magistrate’s determination that the statements in the conduct 

report are protected by qualified privilege. The Supreme Court of Ohio in Jackson set out 

the essential elements of a conditionally or qualifiedly privileged communication as follows:

(1) good faith,

(2) an interest to be upheld,

(3) a statement limited in its scope to this purpose, and

(4) a proper occasion, and publication in a proper manner and 

to proper parties only. 

Jackson at ¶ 9, citing Hahn v. Kotten, 43 Ohio St.2d 237, 246 (1975). 

{¶ 32} “The defense of qualified privilege is deeply rooted in public policy. It applies 

in a variety of situations where society’s interest in compensating a person for loss of 

reputation is outweighed by a competing interest that demands protection.” A & B-Abell at 

8. “This affords some latitude for error, thereby promoting the free flow of information on 

an occasion worthy of protection.” Id. at 9. “One type of interest protected by a qualified 

privilege is the public interest. The ‘public interest’ privilege ‘involves communications 

made to those who may be expected to take official action of some kind for the protection 

of some interest of the public.’ ” Id., quoting Prosser & Keeton, on the Law of Torts, Section 

115, 830 (5th Ed.1984).

{¶ 33} Appellant argues in support of his second assignment of error the Court of 

Claims chose portions of the magistrate’s decision in a manner that “unfairly characterized

the evidence.” (Appellant’s Brief at 11.) Appellant contends a full view of the magistrate’s 

findings of fact show: appellant established defamation per se; that McGilton conceded he 

did not personally witness or, despite the prevalence of security cameras, have surveillance 

video of appellant performing activities that could be associated with the drug ring; there 

was no evidence to corroborate the alleged informant’s statement and no evidence of money 

laundering; and no testimony from chapel staff supporting McGilton’s theory. In summary, 
No. 22AP-387 12

appellant argues “there was no evidence implicating [appellant’s] involvement in th[e] drug 

ring which McGilton knew before publishing the written conduct report” and there was 

“undeniable evidence to the contrary.” (Appellant’s Brief at 14.) Appellant asserts that

“McGilton’s only interest was to implicate [appellant] no matter what” and improperly

published the conduct report to a third party “knowing that the information therein was 

based on evidence known by McGilton to be false.” (Appellant’s Brief at 14.)

{¶ 34} Here, contrary to appellant’s position, there is sufficient evidence to show

McGilton made the allegation that appellant was a part of the drug ring in good faith to 

establish a qualified privilege. According to the magistrate’s findings of fact, McGilton 

testified: he was investigating drug activity at NCI involving approximately 8 to 12 inmates 

as suspects; an informant stated drugs were passed though the fence and a person 

nicknamed “Bama” in the chapel would receive them; after investigating further McGilton 

determined appellant worked in the chapel, was originally from Alabama, and was known 

as “Bama”; video surveillance footage showed appellant was meeting with many of the 

individuals involved in the investigation; chapel staff told McGilton that an emergency door 

in the chapel could be opened from the inside and led to an outdoor visitation area 

separated by a chain link fence; when standing at the officer’s desk the emergency door is 

not visible; appellant had access to the emergency door and the opportunity to receive a 

package through the fence; and that he believed statements in the conduct report 

implicating appellant in the drug ring were true when he wrote them although he did not 

think the findings supported a finding of beyond a reasonable doubt to support criminal 

charges. (Mag.’s Decision at 1-5.) 

{¶ 35} The lack of direct evidence of appellant caught in the act (such as video 

surveillance footage) and presence of countervailing evidence (such as testimony 

undermining McGilton’s theory that appellant hid and repackaged the drugs in the staff

restroom) does not mean McGilton acted without good faith in making the conduct report

considering the circumstantial evidence he collected through his investigation.

Circumstantial evidence may possess “the same probative value as direct evidence.” State 

v. Ford, 10th Dist. No. 16AP-282, 2016-Ohio-8350, ¶ 13. State v. Stewart, 10th Dist. No. 

19AP-615, 2020-Ohio-5344, ¶ 50 (explaining that even under the higher legal standard 
No. 22AP-387 13

employed in criminal cases, circumstantial evidence may be sufficient to support a 

conviction). Moreover, the magistrate determined McGilton’s testimony was credible and, 

as previously discussed, the Court of Claims was not able to second-guess that finding. 

Martin at ¶ 10 (“If a transcript is not provided, the trial court cannot make a credibility 

determination regarding the evidence presented to the magistrate.”). 

{¶ 36} We are not tasked with determining whether we believe appellant to be guilty 

or not guilty of the accusations made by McGilton but are limited to assessing whether the 

Court of Claims correctly applied the law to the magistrate’s factual findings in determining 

McGilton’s statements were made in good faith. Here, the evidence supports a good-faith 

finding. See, e.g., Watley v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 07AP-902, 2008-

Ohio-3691, ¶ 31 (finding correction officer’s statements to have been made in good faith

where, according to the officer’s affidavit, he filed the conduct report in accordance with his 

senses, knowledge, and experience as a correction officer, as part of his duty, on behalf of 

appellee, to maintain the safety and security of the prison, and because he believed that 

appellant had violated prison rules). Further, the statements in the conduct report were 

made in connection with McGilton’s and ODRC’s interest and duty in ensuring the safety 

and security of the institution, its prisoners, and its employees and were limited in 

publication to an appropriate internal portal. Id. at ¶ 30 (“Public policy concerns dictate 

that persons employed within the prison system, especially correction officers who are 

directly involved with the inmate population, be afforded a qualified privilege in reporting 

violations of prison rules in order to maintain the safety and security of the institution, its 

prisoners, and its employees.”). 

{¶ 37} Overall, the magistrate’s findings of fact, accepted as true, support the Court 

of Claims’ conclusion that ODRC established a qualified privilege, and appellant has not 

otherwise demonstrated the Court of Claims incorrectly applied the law to the magistrate’s 

facts to demonstrate reversible error on the facts of this case. As a result, appellant’s second 

assignment of error is overruled.

{¶ 38} Appellant next contends that the Court of Claims erred when it overruled his

objection challenging the magistrate’s determination that appellant failed to show actual 

malice to defeat the qualified privilege.
No. 22AP-387 14

{¶ 39} To overcome a qualified privilege, the plaintiff must show by clear and 

convincing evidence that the disputed communication was made with “actual malice.” A & 

B-Abell at 11. “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.” Jacobs v. Frank, 60 Ohio St.3d 111 (1991), paragraph two of the syllabus. “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.) 

Jackson at ¶ 10. 

{¶ 40} Conversely “[e]vidence that establishes, at best, the publisher ‘should have 

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

defeat a qualified privilege. Hill v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 20AP-88, 

2021-Ohio-561, ¶ 19, quoting Varanese v. Gall, 35 Ohio St.3d 78, 82 (1988). Negligent 

actions do not demonstrate actual malice. Hill.

{¶ 41} Appellant argues that he succeeded in establishing actual malice by clear and 

convincing evidence. Appellant points to the magistrate’s findings that: McGilton conceded 

that he did not personally witness or have surveillance video of appellant performing any 

of the activities McGilton suspected he engaged in as a member of the drug ring; McGilton 

admitted he was aware appellant’s job duties did not consist of cleaning the restroom in the 

chapel; McGilton testified the evidence of money laundering was no longer in his file; and 

McGilton could not explain why RIB failed to indicate that the board had not relied on an 

informant’s statement. In support of his argument, appellant cites to Hill at ¶ 15-18.

{¶ 42} Contrary to appellant’s argument, Hill does not support reversal. Hill, similar 

to the instant case, involved an inmate-led defamation claim against ODRC based on 

statements McGilton made in a conduct report implicating the inmate in hiding and 

distributing drugs in the prison. The Court of Claims granted the motion for summary 

judgment filed by ODRC. In reviewing the inmate’s appeal,this court determined the Court 

of Claims erred by disregarding the inmate’s affidavit as self-serving, by finding appellant’s 

affidavit was the only evidence relied on by the inmate to prove actual malice, by concluding 

McGilton submitted unrebutted affidavit testimony, and by failing to construe the evidence 
No. 22AP-387 15

in appellant’s favor as it was required to do. We then determined the summary judgment 

evidence pointed to by the inmate could support an inference that McGilton failed to have 

any evidentiary support for his charges against that inmate. Based on the summary 

judgment standard, we concluded the inmate had succeeded in creating a genuine issue of 

fact as to whether McGilton published the defamatory statements in the conduct report 

either with knowledge that the statements were false or with reckless disregard as to their 

truth or falsity to establish McGilton acted with actual malice. Therefore, we sustained the 

inmate’s assigned error and reversed and remanded the matter for further proceedings. 

{¶ 43} The instant case is distinguishable from Hill. Our holding in Hill concerned 

only whether the inmate there provided enough evidence to avoid summary judgment in 

ODRC’s favor on the issue of actual malice. We did not, as appellant suggests, announce a 

bright-line rule governing reliance on informants and/or failing to have video surveillance 

footage as it relates to establishing actual malice in a defamation case. Moreover, unlike in 

Hill, a trial was held in the instant case which produced testimony supporting the Court of 

Claims’ holding that appellant failed to establish McGilton acted with actual malice. The 

evidence garnered at trial as stated in the magistrate’s findings of fact shows McGilton,

while conducting a broader investigation into a prison drug ring, implicated appellant after 

cross referencing the information gained from the informant with information about 

appellant’s job, nickname, and opportunity to commit the offenses. McGilton testified he 

believed appellant to be a part of the drug ring at the time of the investigation and continued

to believe this to be true at trial. Again, the magistrate’s determination on McGilton’s 

credibility on those points could not be reviewed by the Court of Claims’ judge. Martin at 

¶ 10. The lack of direct evidence of appellant conducting drug-related activities, or the 

possibility that McGilton was ultimately wrong, does not establish McGilton acted with 

actual malice in implicating appellant in the drug ring on this record. See Ford at ¶ 13; 

Watley at ¶ 33. At most, appellant has pointed to evidence of possible negligence on 

McGilton’s part, which falls short of establishing actual malice to defeat a qualified privilege 

in a defamation action. Hill at ¶ 19; Varanese at 82.

{¶ 44} Overall, the magistrate’s findings of fact, accepted as true, do not show by 

clear and convincing evidence that McGilton acted with actual malice. Appellant has not 
No. 22AP-387 16

demonstrated the Court of Claims incorrectly applied the law to the magistrate’s facts in 

this case in finding appellant failed to establish actual malice to defeat ODRC’s qualified 

privilege.

{¶ 45} Accordingly, appellant’s second and third assignments of error are overruled.

IV. Conclusion

{¶ 46} Having overruled appellant’s three assignments of error, the judgment of the 

Court of Claims of Ohio is affirmed.

Judgment affirmed. 

JAMISON and BOGGS, JJ., concur.

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