[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 1 6 , 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 de famation 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 a ris ing 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 b y the internal Rules Infractions Board ( “ RIB ” ) a nd, as a result, wasNo. 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 C ourt of C laims held a trial on the matter before a magistrate on January 27, 2022. T he magistrate issued a decision including findings of fact and
conclusions of law. According to th e magistrate ’ s finding s of fact , Jared McGilton , an NCI institutional inspector for 8 years responsible for conducting administrative investigations
of crimi nal 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 investiga tion 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 t he chapel and the outdoor visitation area are separated by a chain link fence. Accord ing 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 chap el and break the drugs down to distribute throughout the instituti on. ”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 d id 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 . Th e conduct report asserts appellant ’ s role in the network was to retrieve package s of illegal drugs left by the exterior chapel door and then hide
, repackage
, and distribute the drugs for profi t

. The report also states appellant would lau n der the money through

“ Cash app

. ” (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 anothe r 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 lau n der money, McGilton testified that at the time he wrote the statement, he had information connecting appellant to money laundering through Cashap p , 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 eviden ce supported the administrative charges, McGiltonNo. 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 g uilt. (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 poten tial 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 rel ied 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 [OD RC ’ 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

acce ss 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 restroo m. 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

a ppellant
, 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 rema ined locked until a staff member unlocked it, and “ never had access to ” or “ went out ” the exterior chapel door

. (Mag

. ’ sNo. 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 eviden ce, 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 M cGilton 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 dis regard to its truth or falsity ” ; and (3) “ The Magistrate Judge erred to the

pr ejudice 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. ” ( Ap r. 20, 2022 Objs

. at 1 , 7, 14 .) {¶ 15} The Court of Claims overruled appellant ’ s objections and adopt ed 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 magi strate ’ 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 ofNo. 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 E rror {¶ 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 T IMELY 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 S HOW 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 th at privilege

. For the reasons th at 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 def a mation cla i m

. 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 t he C ourt of C laims erred and abused its discretion when it failed to dispose of each of his objections to the magistrate ’ s decision
, pursuant to C iv.R. 53(D)(4)(d)
, a nd that, as a result, this court doesNo. 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,

t o the extent appellant argues t he Court of Claims erred by in adequately address ing appellant ’ s third objecti on ( 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 Oh io 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 c ourt 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 d ispose 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 objection s , the court finds that the magistrat e has properly determined the factual issues and appropriatel y 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.) P receding 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).

T he Court of Claims ’ analysis of appellant ’ s second and third objections incorporated the magistrate ’ s determination that “ McGilton credibly testif ied ” on multiple matters. ( Jgmt. Entry at 3, 4.) {¶ 22} Appellant cites to Drummond for the propo sition that no final
, appeal able
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 entire l y

. 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 Korlesk i at ¶ 9 (determining the appeal was taken from an order that w as 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 ” )

. Th e 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 objection s

. {¶ 23} A recent case from this court
, Ohio Dept. of Taxati on 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 magist rate ’ s decision); and Shaffer v. Shaffer
, 109 Ohio App.3d 205, 212 ( 3d.Dist. 1996) (presuming trial court overrule d 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 trialNo. 22AP

- 387 9

court issued a judgment entry stating it adopt ed the magistrate ’ s decision and “ ‘ over rul [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

. N evertheless , the Barney court determine d the entry in that case did not con st itute
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 overrule d appellant ’ s objections and adopt ed 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

. C o ns id ering 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, w

hile the Co urt of Claims ’ judgment does enough to est ablish a final
, appealable order, appellant ’ s first assignment of error implicitly raises the issue of whether
the Court of Claims committed a revers ible error due to an insufficient analysis

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

a n 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 the m

. See Reid v. Shaffer , 10th Dist. No. 19AP

- 765, 2020

- Ohio

- 5448, ¶ 25 and cited cases ( “ [m] oreover, we have already fo und 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 Assignment s of Error

– Showings of Qualified Priv ilege 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 determinatio n 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 reviewin g a magistrate ’ s decisio n 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 f indings

. ” 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 determin ing 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
establish ed a qualified p rivilege 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 E levator 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 privi lege 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, a ppellant first contends t he C ourt of C laims erred when it overruled his objection challenging the magistrate ’ s determination that the statement s 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 publ ic. ’ ” Id. , quoting Prosser & Keeton , on t he Law of Torts
, Section 115, 830 (5 th 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 characteriz ed
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 personal ly 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 chap el 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 ther e in 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 qualifie d 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 c hapel would receive them ; after investigating further McGilton
determined appellant worked in the c hapel
, was originally from Alabama , and was known

as “ Bama ” ; video surveillance footage showed appellant was meeting with m any of the individuals involved in the investigation ; chapel staff told McGilton that an emergency door
in the c hapel could be opened from the inside and led to an outdoor visitation area
separate d 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
thin k the findings supported a finding of beyond a reasonable doubt to support criminal charges

. (Mag

. ’ s Decision at 1

- 5 .) {¶ 35} T he 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 re port considering the circumstantial evidence he collected through his investigation

. C ircumstantial 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 standardNo. 22AP

- 387 13

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

. Moreover, t he 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 fa ctual 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, ¶ 3 1 (finding correction officer ’ s statements to have been made in good faith where, a ccording 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 m aintain the safety and security of the prison, and because he believed that appellant had violated prison rules )

. Further, t he s tatements 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 ma gistrate ’ s f indings of fact, accepted as true, support the Court
of Claims ’ conclusion that ODRC established a qualified privilege
, and a ppellant has not
otherwise demonstrated the Court of Claims incorrectly applied the law to the magistrate ’ s facts to de monstrate 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 s how 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

- A bell 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)

. N egligen t 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 : M cGilton conceded that he did not pers onal ly 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
cha pel ; 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 McG il ton made in a conduct report implicating the inmate in hiding an d distributing drugs in the prison

. T he Court of Claims granted the motion for summary judgment filed by ODRC

. In reviewing the inmate ’ s appeal, this court determined the C ourt of C laims 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 evidenceNo. 22AP

- 387 15

in appellant ’ s favor as it was req uired 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 th at inmate

. Based on the summary judgment standard , w e conclude d the inmate had succeeded in creating a genuine issue of
fac t 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 distinguisha ble 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 ha ve video surveillance footage as it relates to establishing actual malice in a defamation case

. Moreover, u nlike 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. T he
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
, implicat ed appellant after cross referencing the i nformation gained from the informant with information about appellant ’ s job, nickname, and opportunity to commit the offense s

. McGilton testified he
believed appellant to be a part of the drug ring at the time of the investigation and continue d
to believe this to be true at trial

. Again, the magistrate ’ s determination on McGilton ’ s credibility on those points could not be r eviewed by the Court of Claims ’ judge

. Martin at ¶ 10. T he lack of direct evidence of appellant conducting drug

- related ac tivities , or the possibility that McGilton was ultimately wrong, does not establish McGilton acted with
actual m alice 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, t he magistrate ’ s findings of fact, accepted as t rue, do not show by clear and convincing evidence that McGilton acted with actual malice. A ppellant has notNo. 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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