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Bonds v. University of Cincinnati Medical Center

United States District Court, S.D. Ohio, Western Division

May 1, 2018

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

          ORDER

          Karen L. Litkovitz, United States Magistrate Judge.

         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) plaintiffs motion for summary judgment against defendant Conway (Doc. 164), Conway's response in opposition to the motion (Doc. 171), plaintiffs reply in support of the motion (Doc. 177), defendant Conway's notice of supplemental authority (Doc. 180), plaintiffs response (Doc. 181) and defendant's reply (Doc. 183); (2) plaintiffs motion for summary judgment against the KSP officers (Doc. 165), defendants' response in opposition (Doc. 170), and plaintiffs reply in support of the motion (Doc. 176); (3) the KSP officers' motion for summary judgment (Doc. 166), plaintiffs 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), plaintiffs response in opposition to the motion (Doc. 169), and defendant's reply in support of the motion (Doc. 174).

         I. Background

         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 plaintiffs 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 plaintiffs 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. (K, ¶3). Plaintiff alleges that the KSP officers "intimidated Plaintiff into stopping the publishing of political advice given to black voters on social media and Plaintiffs 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 what seemed like a threat to Plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs repeated requests were intended to disrupt the essential functions of the Board. (Doc. 167, Exh. A-Ky. Op. Art'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 plaintiffs 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 correspondence with this office has been hostile and inappropriate. Our office will not respond to your email messages that are written in such a tone in the future.

(Doc. 167, Exh. B, p. 14).

         13. On March 26, 2015, Bonds stated in an email to Harrison and Bender:

Can I have a copy of Michelle Harrison's resignation when she submits the document? Whom do I address an open records request to for her personnel jacket and file? She is not an attorney of the people. She is totally in the wrong business. The way he hustled her should be clear and convincing evidence for a demotion.

(Doc. 167, Exh. B, p. 16).

         14. Bender again sent Bonds an email response construing 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 again informed him:

[T]he tone and language of your correspondence with this office has been hostile and inappropriate. Our office will not respond to your email messages that are written in such a tone in the future.

(Doc. 167, Exh. B, p. 16).

         15. On March 26, 2015, Richard Badaracco, Commissioner, Department of Criminal Investigations, OAG, emailed Bender and informed her that he was keeping a work file with all of Bonds' correspondence. He advised Bender:

At this point (although very weak) an argument could be made possibly for KRS 525.070 Harassment or perhaps KRS 525.080 Harassing Communications - class B. misdemeanor violation. I'll make some inquiries re: Mr. Bond[s] with OEA. I will also look at his background and if he has a history and/or propensity for any kind of violence.

         (Doc. 165, Exh. I).

         16. Bonds sent an email to Bender dated March 27, 2015, informing her that he would like to speak to the AG and asking her how he could accomplish this. (Doc. 167, Exh. B, p. 19). Bender sent Bonds an email that same date stating that she would forward the request to the Attorney General's scheduler. (Doc. 167, Exh. B, p. 19).

         17. On April 7, 2015, Bonds emailed Bender about his request for meeting with Conway and stated:

You told me two weeks ago that I would hear from the AG's schedulers, yet I have not heard anything from this person to set a meeting date with the elected official.
You gave me your word this would happen.
I'm not letting Ms. Harrison's erroneous opinion go by lightly, nor am I allowing Mr. Ruberg's blatant lies in order to achieve the desired opinion go by either.
Both Harrison and Ruberg will have material sent to the KY Bar Association. Please don't be the third attorney to go down in the horrific web of lie [sic] that Harrison allowed to percolate.

(Doc. 167, Exh. B, pp. 18-19).

         18. In an email response that same date, Bender stated:

I do not appreciate your threats and I ask that you stop making them against me and Ms. Harrison.
She informed Bonds that she had forwarded his request for a meeting with Conway to the AG's scheduler and the request was denied.

(Doc. 167, Exh. B, p. 18).

         19. In an email to Bender and Harrison dated April 22, 2015, Bonds stated:

I'm about to mail in an open records appeal.
Can I be assured that the appeal won't touch the other alleged attorney included on this email? The racist lady who doesn't question white men, like a Stepford wife is taught not to do? I mean with opinion 15-ORD-015, she set women's and civil liberties back about 100 years. I hope she is proud.

(Doc. 167, Exh. B, p. 18).

         20. According to Long, Harrison's immediate supervisor, the OAG became concerned that Bonds might visit the OAG to harass Harrison or other OAG staff after plaintiff sent a series of emails over several months which "accused Ms. Harrison of racism and used hostile language"; it was decided that Kentucky Capitol security personnel would be given a mugshot of plaintiff; and security was instructed to call Long if Bonds signed in to visit the Capitol. (Doc. 167, Exh. C, Long Affidavit, ¶¶ 5, 6).

         21. On July 1, 2015, Bonds posted on Twitter: "Look what came in the mail today. It's all black. You can be a white supremacist, but watch how you say all that." Attached to the post was a photo of a gun. (Doc. 167, Exh. D).

         22. On July 14, 2015, Bonds came to OAG main office at the Kentucky Capitol building with an Open Records Act appeal. Long met plaintiff at the front desk and Bonds gave Long the appeal. The two then had a one-on-one meeting in a room in the Capitol building to discuss Bonds' issues with the OAG and the appeal. Long avers that he terminated the conversation after Bonds stated that 15-ORD-015 was "worse than" or "as bad as" the Charleston shooting, " which Long understood to be a reference to the June 17, 2005 mass murder of nine people at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina perpetrated by white supremacist Dylann Roof (Doc. 167, Exh. B, p. 22; Exh. C, Long Aff, ¶ 7).

         23. Bonds asserts that the meeting with Long, which was held in a secluded room, was "cordial [and] professional." (Doc. 169 at 3, Plaintiffs Motion for Summary Judgment, Statement of Fact No. 6). Long sent an email to Bender after the meeting describing plaintiff as "grateful, " but he questioned whether he should have met with plaintiff alone "since he is unstable." Long explained that he was "trying to head off more crazy emails." (Doc. 167, Exh. B, p. 22).

         24. After the meeting and on the same day, plaintiff sent an email to Bender, Long and Harrison which states:

As for the visit with Mr. Long, I entered the visit and left the visit very concerned [T]he guard knew my name and summoned Mr. Long. . ..
That is foul. You people sent out an APB for me? This further shows you all are blocking for Michelle Harrison's fuckery known as 15-ORD-015.
This is not 'The Day of the Jackal." As I have stated before I am not "Don't tread on my lawn guy/' I am your typical, garden-variety inner city urchin, as described by many people in public offices in this state.
Also during the meeting with Mr. Long, he referred to Ms. Harrison several times as "Shelly." Is Ms. Harrison a 15-year-old-girl? No. wonder she won't question white men. Why are we referring to grown women as "Shelly" in a professional, public agency?. . . .
During the meeting, it was clear that Mr. Long's role was to block for "shelly" and Robyn Bender.
Since I was ambushed by security and Mr. Long, and in addition to the fact that I am in possession of an email conversation between myself and the attorney who spoke on behalf of the agency in Ms. Harrison's fuckery known as 15-ORD-015, you all have left me with no choice but to file suit against Ms. Harrison, Robyn Bender, Mr. Long as individuals and the OAG as an agency for a myriad of charges including dereliction of duty in a public office; discrimination, and slander. Had Ms. Harrison asked one simple follow-up question before she set out to opine on the fuckery known as 15-ORD-015, all of this could have been avoided, .. .
I WANT TO SPEAK WITH THE GOD DAMNED ATTORNEY GENERAL.
But I am filing suit.
P.S. The only other Benjamin I know is a key figure in the Boone County Circuit Court case 14-CI-1854; Todd Bonds vs. Walton-Verona Independent Board of Education. He was a racist employee who started this mess. The same Walton-Verona who I have made the most appeals regarding Open records/Open Meeting violations. The same Walton-Verona which benefitted when Ms. Harrison produced the fuckery known as 15-ORD-015. Oh, the irony Benjamin.

(Doc. 167, Exh. B, pp. 23-24).

         25. On July 26, 2015, plaintiff sent an email to Bender, Long, Harrison, Assistant Attorney General Amye Bensenhaver and Ruberg regarding a letter he had received from Bensenhaver which indicated that information related to the Board's denial of his Open Records Request had been sent to Ruberg. The email reads in part:

There was nothing in the passage that said the citizen had to inform the agency of any responses to the reply, yet Ms. Bensenhaver sent my responses to Don Ruberg, a man who tried to have me killed while dropping papers off at his office.
The Crestview Hills PD came to his law firm with their chest full of the hot air that is White Supremacy. . . .
The reason I say killed because when black folk are accosted by law enforcement, the outcome usually isn't positive for the black person. This has been occurring for 400 years in this country. . . .
Please explain this to me as you all know, I am your garden variety inner city urchin.

(Doc. 167, Exh. B, p. 27).

         26. In an email response she sent plaintiff the next day, Bender wrote she understood that Bonds had spoken with Bensenhaver about the issue raised in his email and that Bensenhaver had provided Bonds with the information he had requested. Bender also objected to at least one "hostile" and inappropriate voicemail Bonds had left ...


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