Bonds v. Univ. of Cincinnati Med. Ctr.

TODD BONDS, Plaintiff, v. UNIVERSITY OF CINCINNATI MEDICAL CENTER, et al., Defendants.

Civil Action No. 1:15-cv-641

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

May 1, 2018

Litkovitz, M.J.

ORDER

Plaintiff, a former resident of Kentucky who currently resides in Ohio, brings this pro se action alleging violations of his rights by defendants the former Kentucky Attorney General (AG) John William "Jack" Conway and "Two Unknown Kentucky State Police Officers," who plaintiff has identified Richard Saint-Blancard and Danny Caudill ("KSP officers"). The matter is before the Court on the following motions: (1) plaintiff's motion for summary judgment against defendant Conway (Doc. 164), Conway's response in opposition to the motion (Doc. 171), plaintiff's reply in support of the motion (Doc. 177), defendant Conway's notice of supplemental authority (Doc. 180), plaintiff's response (Doc. 181) and defendant's reply (Doc. 183); (2) plaintiff's motion for summary judgment against the KSP officers (Doc. 165), defendants' response in opposition (Doc. 170), and plaintiff's reply in support of the motion (Doc. 176); (3) the KSP officers' motion for summary judgment (Doc. 166), plaintiff's response to the motion (Doc. 169), and defendants' reply in support of the motion (Doc. 178); and (4) defendant Conway's motion for summary judgment (Doc. 167), plaintiff's response in opposition to the motion (Doc. 169), and defendant's reply in support of the motion (Doc. 174).

I. Backgound

Plaintiff filed the original complaint in this action in October 2015. (Doc. 3). Plaintiff alleged in the original complaint that on or about September 2, 2015, the original defendants violated plaintiff's rights while he was a patient at the University of Cincinnati Medical Center (UCMC) and worsened his "condition," causing plaintiff mental and physical anguish. (Id. at 3). On November 18, 2016, the Court granted plaintiff leave to file a pro se amended complaint adding a First Amendment retaliation claim against newly-named defendants the KSP officers and former Kentucky AG Conway (Counts III and V) and adding a Fourth Amendment claim against defendants KSP officers (Count IV). (Doc. 75). Plaintiff alleged in the amended complaint that the KSP officers came onto the grounds of the UCMC "under false pretense" when plaintiff was a patient there, and the unknown UCMC security guard allowed them access to plaintiff's hospital room in "violation of Plaintiff's Protected Health Information." (Doc. 72, ¶ 3; Id., § III, ¶ 10). Plaintiff states he was not in custody and no law enforcement agency was "in immediate pursuit" of him. (Id., ¶ 3). Plaintiff alleges that the KSP officers "intimidated Plaintiff into stopping the publishing of political advice given to black voters on social media and Plaintiff's formerly sole-operated Web site www.theoutclause.com." (Id., § III, ¶ 10). Plaintiff alleges that the KSP officers explained to him that they were sent by the Office of the AG and then-gubernatorial candidate and former Kentucky AG Conway to talk to plaintiff about his social media postings, which routinely criticized the work of the AG, urged voters not to vote for Conway, and "informed black voters of the machinations of 'Conway' and the 'OAG.'" (Id., ¶¶ 3, 4; Id., § III, ¶ 11). Plaintiff alleges his "speech was not a plot to overthrow the government or to break laws." (Id., ¶ 4). Plaintiff alleges that the officers "then threatened Plaintiff with whatseemed like a threat to Plaintiff's livelihood and safety by saying 'handles [sic] this or else . . .' causing Plaintiff to shut down his Web site that was gaining popularity." (Id.). Plaintiff also alleges that one of the KSP officers searched under plaintiff's bed covers without asking and without a warrant and found a shoe. (Id., ¶ 3). Plaintiff alleges that he experienced a significant spike in his blood pressure and he requested to go outside. (Id., ¶ 5). Plaintiff alleges that although he had permission to go outside, the guard told him to go back inside. (Id., ¶ 5). The Court denied motions to dismiss filed by defendants KSP officers and Conway and allowed plaintiff to proceed on his First Amendment retaliation claim against these defendants and his Fourth Amendment claim against the KSP officers. (Doc. 115).

II. Undisputed facts

The following facts are not disputed by the parties, unless otherwise noted.

1. In 2014, plaintiff filed Open Records Act appeals to the Kentucky Office of the Attorney General (OAG) against the Walton-Verona, Kentucky Independent Board of Education ("the Board") and the Spencer County, Kentucky Board of Education: Ky. Op. Att'y Gen. 14-ORD-078; 14-ORD-109; 14-ORD-119; 14-ORD-130; and 14-ORD-153. (Doc. 167, Conway Motion for Summary Judgement, Statement of Fact No. 1).

2. On February 3, 2015, the OAG upheld the denial of plaintiff's sixteenth open records request, which sought 2,000 emails in addition to the approximately 17,000 pages of records plaintiff had previously requested. The OAG found that the facts validated the Board's position that plaintiff's repeated requests were intended to disrupt the essential functions of the Board. (Doc. 167, Exh. A-Ky. Op. Att'y Gen. 15-ORD-015, 2015 WL 602646).

3. After receiving the decision in 15-ORD-015, Bonds began sending emails to the author of the decision, Kentucky Assistant Attorney General Michelle Harrison, and other OAG staff members. (Doc. 167, Exh. B).

4. On February 5, 2015, Bonds sent an email to Harrison and to Conway at jack.conway@ky.gov that reads:

Michelle Harrison may have written the absolute worst opinion known to mankind. I've lost previous Open Records Appeals, but her decision in this case makes absolutely no sense.

I seriously am beginning to think racism is allowed and in fact favored in the Commonwealth.

A worker writes racial epithets on an email, and nobody is allowed to see the records that contain other racial epithets?

So now, based on this ridiculous opinion, I will not be able to see these documents, because I made too many previous requests. So if I waited a year to try to request these documents, the opinion from the OAG is we already opined on this category of records, although the current KRS 61.884 says you should have them.

Seriously.

In remembrance of Mike Brown, Eric Garner, Ezell Ford, Tamir Rice and even myself and everybody else who has been victimized by racism.

(Doc. 167, Exh. B, p. 2).

5. Benjamin Long, the OAG Civil and Environmental Law Director, was Harrison's immediate supervisor. (Doc. 167, Exh. C, Long Aff., ¶ 5). Long forwarded the email to Sean Riley of the OAG and Assistant Attorney General Robyn Bender with the comment, "forwarding because Mr. Bonds emailed the AG directly." (Doc. 167, Exh. B, p. 2).

6. Bonds sent an email to Harrison on February 9, 2015 that reads: "Just so that you know the little girl in the attached photo is a woman now. She benefited from your ridiculous decision." A photo of a lynching was attached to the email. (Doc. 167, Exh. B, pp. 3-5).

7. On February 12, 2015, Bonds sent an email to Harrison and to Conway at the email addressjack.conway@ky.ag.gov that stated:

I'm willing to bet you were paid. Chase Bank was started by slave funds, as was fleet. This little girl benefited from your erroneous decision.

. . . .

Also, may I have a copy of 14-ORD-109 or whatever the hell he cited in his appeal to you. . . . Racism is alive and well in the capital offices.

(Doc. 167, Exh. B, p. 6).

8. Bender replied to Bonds' February 12, 2015 email that same day. She informed Bonds she was the records custodian and his email was being treated as an open records request. She advised Bonds of the proper method for submitting an open records request and of how he could find a copy of the decision he requested. (Doc. 167, Exh. B, p. 11).

9. Bonds sent an email to Bender dated February 16, 2015, requesting the name of Harrison's supervisor and how to get in touch with that person. Bonds stated, "There is reason to believe she was paid for [her] opinion in 15-ORD-15." (Doc. 167, Exh. B, p. 11). Bender responded that she oversaw all of the civil divisions, including Harrison, and Bonds could submit his complaint to Bender. (Id., p. 10).

10. On February 21, 2015, Bonds stated in an email to Harrison and Bender:

I was under the impression that I would receive some correspondence regarding my complaint of Ms. Harrison's erroneous decision?

. . . .

Filing a suit is not in my best interest as I am not an attorney, but I can comprehend reasonable legislation.

This is a civil matter, Ms. Harrison allowed a public agency with a known history of civil rights violations against a white female, and whom used a racial epithet against its only black employee in history to deny a claim, by just throwing enough shit against a wall and hoping something sticks.

. . . .

(Doc. 167, Exh. B, p. 10).

11. On March 16, 2015, Bonds stated in an email to Harrison and Bender:

That stupid ass, ridiculous decision made by Michelle took [sic] allowed Don Ruberg [the attorney who represented the Board in opposing plaintiff's open records requests] to submit to the court a fraudulent of [sic] a document on Friday March 13, 2015.

This is bullshit.

You guys need to be dealt with.

I demand you send me an electronic copy of 15-ORD-015 and The Attorney General's business email address.

Bonds included the following quotes at the bottom of this email and others:

"We are the camera of print journalism. In order for citizens to see the bigger picture, we have to blow up the negatives."

"You cannot kill your enemy. When you kill a man, his son becomes your new enemy."

(Doc. 167, Exh. B, pp. 14-15).

12. In an email response sent that same date, Bender construed part of Bonds' response as a request for records, she advised him why the request was deficient, she informed him how to submit a proper request and to access the open records decision that he referenced in his email, and she stated:

[T]he tone and language of your

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