[Cite as McClure v. Ohio Dept. of Rehab. & Corr., 2020-Ohio-1035.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Joel V. McClure, : 

 Plaintiff-Appellant, : 

v. : No. 19AP-535 

 (Ct. of Cl. No. 2018-00683JD)

Ohio Department of Rehabilitation : 

and Correction (REGULAR CALENDAR) 

 : 

 Defendant-Appellee. 

 : 

 

D E C I S I O N 

Rendered on March 19, 2020 

 

On brief: Joel V. McClure, pro se. 

On brief: Dave Yost, Attorney General, and Timothy M.

Miller, for appellee. 

 

APPEAL from the Court of Claims of Ohio 

SADLER, P.J. 

{¶ 1} Plaintiff-appellant, Joel V. McClure, appeals from a judgment of the Court of 

Claims of Ohio in favor of defendant-appellee, Ohio Department of Rehabilitation and 

Correction ("DRC"). For the reasons that follow, we affirm. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} Appellant is an inmate in the custody and control of DRC at the London 

Correctional Institution ("LCI"). In 2017, appellant was a volunteer in the LCI dog handling 

program. Sergeant Brian Preston, who is employed by DRC as a corrections officer at LCI, 

has been involved in the dog handling program for the past eight years. According to 

Preston, in January 2017, he received complaints from other inmates in the dog handling 
No. 19AP-535 2 

program regarding the manner in which appellant trained his dog. After Preston watched 

a videotape of appellant interacting with his dog, he formed the belief that appellant "had a 

poor attitude when it came to caring for his dog and receiving instruction on how to care 

for his dog." (Preston Aff. at ¶ 5, attached to appellee's May 1, 2019 Mot. For Summ. Jgmt.) 

Preston believed appellant "did not appear to be interested in interacting with his dog." 

(Preston Aff. at ¶ 5.) 

{¶ 3} Preston told Karen Mason, who was responsible for overseeing the inmate 

dog handling program at LCI, that appellant should be removed from the program. 

According to Preston, "[o]n or about January 24, 2017," Mason removed appellant from the 

dog handling program. (Preston Aff. at ¶ 7.) Preston completed an Inmate Evaluation 

Report to document the reason appellant was being removed from the program. According 

to Preston, the written evaluation was "not shared with other inmates." (Preston Aff. at 

¶ 7.) 

{¶ 4} On April 19, 2018, appellant filed a complaint in the Court of Claims alleging 

Preston defamed him by making false statements to DRC staff and inmates disparaging 

appellant's reputation in the prison and his skill as a dog handler. DRC moved the Court of 

Claims for summary judgment arguing that appellant's failure to plead and offer proof of 

special damages required a judgment in appellee's favor, as a mater of law. In the 

alternative, DRC argued that qualified privilege shielded DRC from liability to appellant for 

the alleged defamatory communications. 

{¶ 5} In his complaint, appellant alleged Preston's false statements to DRC staff 

and inmates damaged his "reputation as a model prisoner." (Compl. at ¶ 8.) 

II. ASSIGNMENTS OF ERROR 

{¶ 6} Appellant assigns the following as trial court error: 

[1.] THE COURT OF CLAIMS OF OHIO ERRED WHEN IT 

GRANTED THE SUMMARY JUDGMENT TO THE DRC 

WHEN THERE WAS GENUINE ISSUE OF METERIAL FACT 

AT ISSUE. 

[2.] THE TRIAL COURT SHOULD NOT HAVE GRANTED 

SUMMARY JUDGMENT WHEN THERE IS A QUESTION OF 

A WITNESS' CREDIBILITY IS AN ISSUE. 

(Sic passim) 
No. 19AP-535 3 

III. STANDARD OF REVIEW 

{¶ 7} Appellate review of summary judgment is de novo. Gabriel v. Ohio State 

Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12, citing Byrd v. Arbors E. 

Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935, ¶ 5. Pursuant to Civ.R. 

56(C), summary judgment "shall be rendered forthwith if the pleadings, depositions, 

answers to interrogatories, written admissions, affidavits, transcripts of evidence, and 

written stipulations of fact, if any, timely filed in the action, show that there is no genuine 

issue as to any material fact and that the moving party is entitled to judgment as a matter 

of law." Accordingly, summary judgment is appropriate only under the following 

circumstances: (1) no genuine issue of material fact remains to be litigated; (2) the moving 

party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly 

in favor of the nonmoving party, reasonable minds can come to but one conclusion, that 

conclusion being adverse to the nonmoving party. Phillips v. Wilkinson, 10th Dist. No. 

17AP-231, 2017-Ohio-8505, ¶ 11, citing Byrd at ¶ 6, citing Harless v. Willis Day 

Warehousing Co., 54 Ohio St.2d 64, 66 (1978). 

{¶ 8} " '[T]he moving party bears the initial responsibility of informing the trial 

court of the basis for the motion, and identifying those portions of the record before the 

trial court which demonstrate the absence of a genuine issue of fact on a material element 

of the nonmoving party's claim.' " Byrd at ¶ 7, quoting Dresher v. Burt, 75 Ohio St.3d 280, 

292 (1996). "Once the moving party meets its initial burden, the nonmovant must set forth 

specific facts demonstrating a genuine issue for trial." Phillips at ¶ 12, citing Byrd at ¶ 7, 

citing Dresher at 293. 

IV. LEGAL ANALYSIS 

{¶ 9} In each of appellant's assignments of error, appellant argues the Court of 

Claims erred when it granted summary judgment in appellee's favor. Because our review 

of the judgment is de novo, we will consider appellant's assignments of error jointly. 

{¶ 10} "[D]efamation 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 
No. 19AP-535 4 

Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 7 (1995). "Defamation includes both libel 

and slander; libel refers to written or printed defamatory words, while slander refers to 

spoken defamatory words." Gilson v. Am. Inst. of Alternative Medicine, 10th Dist. No. 

15AP-548, 2016-Ohio-1324, ¶ 37, citing Woods v. Capital Univ., 10th Dist. No. 09AP-166, 

2009-Ohio-5672, ¶ 27. "The elements of defamation, whether slander or libel, are: (1) the 

defendant made a false and defamatory statement concerning another, (2) the false 

statement was published, (3) the plaintiff was injured, and (4) the defendant acted with the 

required degree of fault." Gilson at ¶ 37, citing Spingola v. Stonewall Columbus, Inc., 10th 

Dist. No. 06AP-403, 2007-Ohio-381, ¶ 8. 

{¶ 11} "Actionable defamation falls into one of two categories: defamation per se or 

defamation per quod." Gilson at ¶ 38, citing Woods at ¶ 28. "Defamation per se occurs 

when a statement, on its face, is defamatory." Gilson at ¶ 38, citing Woods at ¶ 29. Under 

Ohio common law, in order to be actionable per se, the alleged defamatory statement must 

fit within one of four classes: (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; and (4) in cases of libel only, the words tend to subject 

a person to public hatred, ridicule, or contempt. Whether an unambiguous statement 

constitutes defamation per se is a question of law. Gilson at ¶ 37, citing Spingola at ¶ 8. 

See also Peters v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-1048, 2015-Ohio-2668, 

¶ 1. 

{¶ 12} If a statement is defamatory per se, a plaintiff " 'may maintain an action for 

[defamation] and recover damages, without pleading or proving special damages.' " Woods

at ¶ 30, quoting Becker v. Toulmin, 165 Ohio St. 549, 553 (1956). However, when 

defamation is per se, "[p]roof of the defamation itself establishe[s] the existence of some 

damages." Gosden v. Louis, 116 Ohio App.3d 195, 208 (9th Dist.1996). Where a statement 

is defamatory per quod, a plaintiff must plead and prove special damages. Woods at ¶ 30, 

citing Becker at 557. See also Civ.R. 9. " '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. No. 87AP-1084 (Sept. 13, 1988). 
No. 19AP-535 5 

{¶ 13} "To survive a motion for summary judgment in a defamation action, the 

plaintiff must make a sufficient showing of the existence of every element essential to his 

or her case." Cummerlander v. Patriot Preparatory Academy Inc., 86 F.Supp.3d 808, 829 

(S.D.Ohio 2015), citing Daubenmire v. Sommers, 156 Ohio App.3d 322, 2004-Ohio-914, 

¶ 79 (12th Dist.). 

A. Slander Claim

{¶ 14} As noted above, slander refers to spoken defamatory communications. 

Gilson at ¶ 37; Woods at ¶ 27. In opposition to appellee's motion for summary judgment, 

appellant submitted his own affidavit and the affidavit of a fellow inmate. In his affidavit, 

appellant averred, in relevant part, as follows: 

2. I was in the dog program at [LCI] n since September 1, 2015 

until January 24, 2017. 

* * * 

5. Between January 14, 2017 and January 24, 2017 at one of 

Inmate Douglas Tobias' made up classes. I got into a 

disagreement with Inmate Tobias on training techniques in 

front of all of the dog handlers. 

* * * 

7. Inmate Tobias went to Sergeant Brian Preston and 

fabricated a story that I had a "know it all attitude" was a bad 

dog handler and that I should be immediately removed from 

the dog program. 

8. Instead of Sergeant Preston throughly investigating the 

matter. He simply took Inmate Tobias' word for it, removed 

me from the program and published the untrue statements on 

an "Inmate Evaluation Report." 

9. Once he removed me from the program, Sergeant Preston 

went to every staff member who worked my unit and told 

them that I was not to interact with any of the dogs because I 

was a bad dog handler and a trouble maker. 

10. When I was out on the recreation yard, or walking within 

the institution, Sergeant Preston would point me out to the 

yard officers in the presence of numerous inmates and tell 

them if they saw me interacting with dogs to write me a 

conduct report and put me in the hole if they wanted. 

11. Until late March or early April of 2017 they publicly made 

false statements, ridicule me and humiliated me with malice. 

If Sergeant Preston, or Unit Manager Sharon Carter saw me 
No. 19AP-535 6 

out on the prison yard around numerous inmates. They would 

call me over to where they were conversing with other staff 

and say things like, "Inmate McClure, come here." When I 

would get in front of them they would tell the other staff: "This 

guy is a pain in the ass, if you see him messing with any of the 

dogs write his ass up. He was a shitty dog handler and I don't 

want him messing up any of the staffs dogs who come in." 

* * * 

13. Sergeant Preston could not have known that Inmate 

McClure was a bad dog handler because he was never at any 

of the dog training classes. Inmate Tobias did all if Sergeant 

Preston's Work for him. 

(Sic passim.) (Appellant's Aff. at 1-3, filed June 24, 2019.) 

{¶ 15} Appellant also submitted the affidavit of fellow inmate James Blankenship in 

opposition to appellee's motion for summary judgment. Blankenship averred, in relevant 

part, as follows: 

2. On numerous occasions before I left the dog program in 

November 2017. I heard Sergeant Brian Preston talking to 

other unit staff members openly in front at least ten other 

inmates at any given time. He would tell the other unit staff 

members that Inmate Joel McClure was fired because he was 

a bad dog handler and a trouble maker. 

3. Sergeant Preston and Unit Manager Sharon Carter openly 

said these things in the presence of inmates until I left the dog 

program in November of 2017. 

4. I was in the dog program for well over a year and I never 

saw Inmate McClure deviate from the proper training 

techniques taught to him by Inmate Tobias. 

5. Inmate McClure was fired because he called Inmate Tobias 

out on some of his training techniques. 

6. Shortly thereafter, Inmate Tobias went to Sergeant Preston 

and told Sergeant Preston to kick Inmate McClure out of the 

dog program because Inmate McClure has a "know it all" 

attitude. 

7. Sergeant Preston lied in his affidavit to this Court claiming 

that he and Karen Mason watched a video of Inmate McClure 

being a bad dog handler. Karen Mason was out on sick leave 

months prior and months after Inmate McClure was kicked 

out of the dog program. 

8. Sergeant Preston could not have known that Inmate 

McClure was a bad dog handler because he was hardly ever at 
No. 19AP-535 7 

any of the dog training classes. Inmate Tobias did all if 

Sergeant Preston's Work for him. 

(Sic passim) (Blankenship Aff. at 1-2, filed June 24, 2019.) 

{¶ 16} As previously noted, to constitute slander per se, a false oral statement must 

consist of words which import an indictable criminal offense involving moral turpitude or 

infamous punishment, impute some loathsome or contagious disease which excludes one 

from society, or tends to injure one in his trade or occupation. Gilson, 2016-Ohio-1324, at 

¶ 37, citing Spingola, 2007-Ohio-381, at ¶ 8. Where facts demonstrate the slanderous 

statements meet these criteria, general damages and malice are presumed as a matter of 

law. Woods, 2009-Ohio-5672, at ¶ 30; Becker, 165 Ohio St. at 553. Where an oral 

statement is not defamatory per se, a plaintiff must plead and prove special damages. 

Woods at ¶ 30, citing Becker at 557. See also Civ.R. 9. 

{¶ 17} None of the defamatory oral statements allegedly made by Preston qualify as 

slander per se. The statements portray appellant as a "troublemaker" and a poor dog 

handler, with a know-it-all attitude toward dog training and an unwillingness to take 

guidance from other dog trainers, but they do not import an indictable criminal offense 

involving moral turpitude or infamous punishment, imputed some loathsome or 

contagious disease which would exclude appellant from society, or tend to injure appellant 

in his trade or occupation. Appellant does assert in his merit brief that he participated in 

the dog handling program in order to "obtain his certification with the United States 

Department of Labor to be a certified 'Dog Trainer' upon his release." (Appellant's Brief at 

1.) However, even if an oral defamatory statement that injures one in a possible future 

occupation would qualify as slander per se, neither appellant's complaint nor the affidavits 

he submitted in opposition to summary judgment mention a possible future vocation as a 

dog trainer. Accordingly, appellant presented nothing to the Court of Claims that would 

create a genuine issue of fact whether Preston's oral statements constituted slander per se. 

{¶ 18} Because the alleged oral defamatory statements do not qualify as slander per 

se, in order to survive summary judgment, appellant was required to plead and offer proof 

of special damages. Woods at ¶ 30, citing Becker at 557. See also Civ.R. 9. In his complaint, 

appellant alleges only that Preston's false statements to DRC staff and inmates damaged 

his "reputation as a model prisoner." (Compl. at ¶ 8.) There are no facts alleged either in 

appellant's complaint or in the affidavits submitted by appellant in opposition to the motion 
No. 19AP-535 8 

for summary judgment that would permit an inference that appellant suffered financial 

losses resulting from his impaired reputation as a model inmate and dog handler. In light 

of appellant's failure either to plead or submit some proof of special damages, appellant 

cannot satisfy an essential requirement to his slander claim. Accordingly, we hold the Court 

of Claims did not err when it granted appellee's motion for summary judgment as to 

appellant's slander claim. 

B. Libel Claim

{¶ 19} Appellant's libel claim is based exclusively on statements made by Preston in 

his Inmate Evaluation Report. The statement reads as follows: 

A review of cameras, in person observation, and evaluation by 

group inmate advisor, inmate has a attitude of "knowing it 

all." As a result shows no willingness to take guidance from 

others, trains the dogs his way, and in a manner not consistant 

[sic] with the dog program for the rescue organization, and 

shows no initiate [sic] with the dogs.1

{¶ 20} "In cases of libel, the question of whether the publication complained of is 

libelous per se is a question of law for the trial court." Whitt Sturtevant, LLP v. NC Plaza 

LLC, 10th Dist. No. 14AP-919, 2015-Ohio-3976, ¶ 72. See also Webber v. Ohio Dept. of Pub. 

Safety, 10th Dist. No. 17AP-323, 2017-Ohio-9199, ¶ 37. The Court of Claims determined 

the statements made by Preston in the Inmate Evaluation Report were not defamatory per 

se. Whether certain statements alleged to be defamatory are actionable or not is a matter 

for the court to decide as a matter of law. Id. at ¶ 37, citing Am. Chem. Soc. v. Leadscope, 

Inc., 133 Ohio St.3d 366, 2012-Ohio-4193, ¶ 78, citing Yeager v. Local Union 20, 

Teamsters, 6 Ohio St.3d 369, 372 (1983). "In determining whether a statement is 

defamatory as a matter of law, a court must review the totality of the circumstances, 

consider the statement within its context rather than in isolation, and determine whether a 

reasonable person would interpret that statement as defamatory." Webber at ¶ 37, citing 

Am. Chem. Soc. at ¶ 79. 

{¶ 21} Our review of the Inmate Evaluation Report does not reveal any statements 

about appellant that would subject appellant to public hatred, ridicule, or contempt. The 

 

1 The Inmate Evaluation Report also contains a rating system asking the evaluator to rate appellant on a scale 

of one to ten on such attributes as attitude, initiative, quality/quantity, attendance, dependability, 

safety/housekeeping, and increasing knowledge/skill. Preston gave appellant a total score of 33 out of 100 

possible points. 
No. 19AP-535 9 

statements merely portray appellant as an unwilling or disinterested participant in the 

voluntary prison dog handling program. The report does not accuse appellant of 

mistreating dogs or directly state appellant is a poor dog handler who was dismissed from 

the program. At worst, the statements in the Inmate Evaluation Report arguably permit 

the inference that appellant is a poor dog handler. As such, the statements are defamatory 

by innuendo only, if at all. See Sullivan v. Tucci, 69 Ohio App.3d 20, 22 (10th Dist.1990) 

(statement in a newspaper article that a local politician "failed to make a promised 

statement" is libelous per quod because it is can be interpreted that the promised 

announcement was merely delayed or could not be kept for valid reasons); Griffis v. Klein, 

2d Dist. No. 22285, 2008-Ohio-2239, ¶ 32-33 (written statement in a newspaper was 

libelous per se because it directly accused a union employee of involvement in the 

distribution of pre-market election ballots during the club's election). Because the 

statements in the Inmate Evaluation Report directly accuse appellant of being nothing 

more than an unwilling or disinterested participant in the voluntary prison dog handling 

program, we agree with the Court of Claims that the alleged defamatory statements 

contained in the Inmate Evaluation Report constitute, at worst, libel per quod. 

{¶ 22} Because the alleged defamatory statements in the Inmate Evaluation Report 

do not constitute libel per se, in order to survive summary judgment, appellant was 

required to plead and produce evidence of special damages. As previously noted, 

appellant's complaint reveals no allegation of any monetary loss to appellant arising from 

the alleged defamatory statements made by Preston in the Inmate Evaluation Report, and 

there is nothing in appellant's affidavits that would suggest that appellant suffered a 

financial loss due to the allegedly false statements in the report. In light of appellant's 

failure either to plead or submit some proof of special damages, appellant cannot satisfy an 

essential requirement to his libel claim. Accordingly, we hold the Court of Claims did not 

err when it granted appellee's motion for summary judgment as to appellant's libel claim.2

{¶ 23} For the foregoing reasons, appellant's two assignments of error are overruled. 

 

2 Having concluded appellant failed to produce evidence to satisfy a critical element of his defamation claim, 

and appellee is entitled to judgment as a matter of law, we need not address the Court of Claims' alternative 

holding regarding qualified privilege. 
No. 19AP-535 10 

V. CONCLUSION 

{¶ 24} Having overruled appellant's two assignments of error, we affirm the 

judgment of the Court of Claims of Ohio. 

Judgment affirmed.

DORRIAN and LUPER SCHUSTER, JJ., concur. 

_____________