Best v. Thompson et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
JASON THOMAS BEST, 	Case No. 1:25-cv-00773
Plaintiff, 	Hon. Paul L. Maloney
U.S. District Judge
v.
CHRISTINE THOMPSON, et al.,
Defendants
/
REPORT AND RECOMMENDATION
I. Introduction
Pro se Plaintiff Jason Thomas Best, a former Lansing Community College
(LCC) student, filed this complaint against the seven named Defendants alleging that
he was wrongfully suspended for one year from the college and that his scholarship
was revoked. Best says that after a disciplinary hearing, it was determined that he
had harassed and placed his hands on two other students without their consent.
(ECF No. 1.) 	Best denies the charges and asserts that his rights were violated by
Defendants.
Plaintiff 	asserts 	that 	Defendants 	violated 	his 	First 	and 	Fourteenth
Amendment rights under the U.S. Constitution, the Americans with Disabilities Act,
42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.
(Id., PageID.11.) 	Best also asserts defamation claims (libel) for written statements
made by two students, a staff member, and a staff instructor that were used during
the disciplinary proceeding. (Id., PageID.11-12.) Best brings 42 U.S.C. § 1983 claims
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under the First Amendment and defamation claims against former faculty/staff
member Caitlin Cuccia. Best asserts Fourteenth Amendment claims against the
Head of Office of Student Compliance, Christine Thompson, and LCC Police
Sergeant (Sgt.) Ruben Molonado. 	(Id., PageID.14.) 	And Plaintiff Best sues three
students – Taylor Schabes, Nate Sobania, and Mackenzie Cornelison – for
making defamatory statements concerning Plaintiff’s conduct that were used in the
disciplinary proceeding. 	(Id.) 	Finally, Plaintiff sues the Dean of Student Affairs,
Felipe Lopez Sustaita, in his official capacity for declaratory and injunctive relief
to expunge all records relating to Plaintiff’s disability proceeding and determination.
(Id., PageID.14-15.)
Plaintiff’s complaint is 72 pages in length. 	Initially, his complaint sets forth
some facts regarding his “March 8, 2023, student conduct hearing.” 	(Id., PageID.4.)
Plaintiff 	explains 	that 	this 	lawsuit 	is not 	about 	that 	hearing, 	but 	that 	prior
proceeding sets forth “Defendants’ motive and pattern of conduct.” 	(Id.) 	There, it
was determined that Plaintiff violated student conduct rules and was responsible for
disruption or obstruction of teaching, or other college activities and physical abuse,
failure to comply with directions by officials or law enforcement, and assaults or
threatening behavior. 	Plaintiff was placed on probation for the remainder of his
college career at LCC, through March 8, 2099. (ECF No. 1-4, PageID.78-79, 81.)
This case involves Plaintiff’s interaction in January of 2024 with LCC massage
students. 	(ECF No. 1, PageID.15.) 	Plaintiff asserts that camera video footage
confirms his actions and claims. 	Best claims that on January 11, 2024, Defendant
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Cuccia asked Plaintiff if he was interested in getting a massage. (Id.) Plaintiff agreed
and waited for his turn. (Id.) He was then directed to a chair assigned to Defendant
Schabes, a Level 1 massage student. (Id.) 	Schabes gave Best a 2-3 minute massage.
(Id., PageID.16.) 	Best complained that the massage did not relieve his chronic
musculoskeletal tension and suggested a “depressed scapala” mobilization technique
that had previously released his tension. (Id.) Best says that Schabes agreed to allow
Best to demonstrate the technique on her. 	(Id.) 	Best says that his demonstration
was brief and in a public area with 3 other students and staff a few feet away. (Id.)
Best says that Schabes stated that “there was nothing sexual about it.” 	(Id.) 	Best
says that Schabes later claimed that she did not give Best permission. 	(Id.) 	Best
claims that Schabes turned her back to him and he never forced her to allow him to
massage her. (Id.) Best claims that Schabes made two false statements to the Office
of Student Compliance (OSC): (1) that he massaged her shoulder, and (2) that he put
his hands on her without asking. 	(Id., PageID.17.) 	On July 12, 2024, Plaintiff
received a formal finding from the OSC that he had violated the student code of
conduct. (Id.)
Best claims that on January 18, 2024, a similar occurrence happened with
massage student Nate Sobania. 	(Id., PageID.18.) 	Plaintiff says that based upon
“Sobania’s build and apparent strength, Plaintiff believed he might be able to perform
a lumbar ‘trigger point’ release.” 	(Id.) 	Plaintiff alleges that Defendant Cuccia
directed him to Sobania, and he explained to Sobania that he suffers with chronic
lower back tension from years of waiting on tables. 	(Id., PageID.19.) 	Best claims
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that 	Sobania 	consented 	to 	allow 	him 	to 	demonstrate 	a 	proper 	pressure-point
technique on Sobania. 	(Id.) 	Best says that Sobania verbally consented and turned
around to signal agreement to allow the demonstration. 	(Id.) 	Plaintiff denies the
claim that he was “loud and yelling.” (Id.) Plaintiff says that Sobania claimed that
he did not remember if Plaintiff had asked for permission and asserted that Plaintiff
had “jabbed his elbow in like a knife.” 	(Id., PageID.20.) 	Plaintiff claims that these
statements were false and are evidence of “actual malice.” (Id.)
During Plaintiff’s demonstration, Defendant Cuccia approached and stated to
Plaintiff: 	“You shouldn’t touch students without their permission.” 	(Id.) 	Plaintiff
responded that he received permission and continued to demonstrate, but Defendant
Cuccia replied: 	“I’m telling you to stop touching students.” 	(Id.) 	Plaintiff says he
immediately stopped and became confused. 	(Id., PageID.20-21.) 	He then says that
he engaged in a “brief civil debate” with Defendant Cuccia. (Id., PageID.21.) Plaintiff
claims that Defendant Cuccia made false statements.
Best alleges that false defamatory statements from Sobania, Schabes, and
Cuccia were used by the OSC in the charge letter dated February 29, 2024, and were
relied upon by the hearing panel’s finding of responsibility on July 12, 2024. 	(Id.,
PageID.22.)
Best asserts that Cuccia further retaliated and violated his First Amendment
rights by initiating her complaint five or six weeks later, after she refused “to retract
the accusation even when confronted with proof of consent.” 	(Id., PageID.23.)
Plaintiff says his “expressed intent to file a grievance was met with disciplinary
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escalation.” (Id.)
Best says that after speaking with Defendant Cuccia, he immediately went to
the Health and Human Services Building where the Massage Therapy Office is
located. 	(Id., PageID.24.) 	There he spoke with staff member Mackenzie “Mack”
Cornelison, who informed him that the program supervisor was unavailable. 	(Id.)
Plaintiff informed Mack that he wished to make a complaint against “the massage
lady” and began explaining Cuccia’s false allegations against him. 	(Id.) 	Best says
that Mack was dismissive and unsympathetic to his concerns. 	(Id.) 	Plaintiff
attempted to further explain by using “psychological principles he was studying in
his dissertation.” 	(Id.) 	Best asserts that Mack later claimed that the encounter
lasted “20 minutes” and that he was loudly ranting. (Id., PageID.25.) Best says that
the encounter lased 5-8 minutes and he was not loud or disruptive. 	(Id.) 	Plaintiff
says that according to OSC records, staff member Stacy Vipond, who was working
nearby, confirmed that he was not “ranting loudly for 20 minutes.” 	(Id.) 	Plaintiff
further says that Mack falsely asserted that he had said “females are not equipped to
be in the massage program.” (Id., PageID.27.) At all times, Plaintiff says that he was
merely 	exercising 	his 	First 	Amendment 	right 	to 	free 	speech 	and 	freedom 	of
expression. 	(Id., PageID.26.) 	Plaintiff says he left the office after he realized that
Mack “would not engage in a fair or objective discussion.” (Id.) 	Plaintiff says that
he was never charged with any wrongdoing based upon his conversation with Mack
and it is unclear why her statement was “introduced into evidence at the July 11,
2024, hearing.” (Id.)
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Plaintiff alleges that Christine Thompson “exercised prosecutorial discretion
in bad faith [by] escalating a weak or pretextual case.” 	(Id., PageID.27.) 	Further,
Plaintiff alleges that Thompson failed to preserve evidence against him, despite his
Freedom of Information Act requests and destroyed the record in violation of his
procedural due process rights. (Id.)
Plaintiff asserts that he made numerous requests to the OSC to review the
video footage to confirm that he did nothing wrong. (Id., PageID.29.) 	Best says that
he received an email from the OSC on May 2, 2024, indicating that a Student Conduct
Hearing was scheduled for May 23, 2024, and he would have 30 minutes before the
hearing to review the case file including redacted witness statements and other
unspecified evidence. 	(Id., PageID.30.) 	Best asserts that this violated his right to
adequate notice and to prepare a defense, due process, and the ADA by “allowing only
30 minutes for a disabled student to review all the evidence and make a case.” (Id.)
Plaintiff sent emails on May 2 and May 6, 2024, requesting evidence including
security camera footage from January 11, 18, and 25, 2024, names of all students and
staff complainants and witnesses, and copies of all written statements submitted
against him. 	(Id., PageID.30-31.) 	His requests were denied. 	(Id., PageID.31.) 	On
May 17, 2024, the OSC emailed him with a list of evidence indicating that four video
clips would be made available for in-hearing review. (Id., PageID.32.) 	Best says that
he was allowed no pre-hearing access to the evidence and was never informed that a
statement from Mack Cornelison would be introduced during the hearing. (Id.) 	On
May 17, 2024, Plaintiff sent two FOIA requests that were not answered until after
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the hearing on August 21, 2024. (Id., PageID.33.) On May 20, 2024, Best requested
postponement of the hearing until his FOIA requests were answered. (Id.) Defendant
Thompson postponed the hearing and indicated it would be rescheduled with notice
to Best. (Id.) 	On June 25, 2024, Best was notified that the hearing was rescheduled
for July 11, 2024, and he would be allotted 60 minutes prior to the hearing to review
the evidence. (Id., PageID.34.) The notice told Best to notify the office immediately
if he needed more time or accommodation. (Id., PageID.35.) Best responded with a
request to dismiss the charges due to violations of discovery and compliance with
internal timelines, or alternatively with a request for mediation. 	(Id., PageID.34.)
His request for mediation was denied and he heard nothing more. (Id.) 	On July 9,
2024, Best requested postponement of the hearing because among his concerns he
had not received requested evidence. (Id.) Best says that he asked for more time to
review the evidence on June 26, July 9, and July 10, 2024, but each of his requests
went unanswered. (Id., PageID.35.) Plaintiff’s requests were denied or unanswered.
(Id.)
Best explains that due to his documented mental disability, 60 minutes to
review the evidence before the hearing was unreasonable and violated due process.
(Id., PageID.35.) 	In addition, Best says that Thompson scheduled the hearing for
8:30 am eastern time, knowing that Best was living in Oregon and that Best would
have to be present at 5:30 am pacific time. (Id., PageID.36.) Best says that he was
residing in a homeless shelter in Oregon and he was not allowed to leave the building
until 7:00 am. 	(Id.) 	Fearing eviction from the shelter if he left the building before
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7:00 am, Best objected to the time, but never heard back. (Id., PageID.37.) Best says
that surveillance videos from January 11 and January 18, 2024, which would have
substantiated his account and exonerated him, were not preserved by LLC in
violation of his rights. (Id., PageID.38.)
On July 15 , 2025, Plaintiff was granted in forma pauperis status. 	(ECF No.
4.)
II. Standard of Law
Under 28 U.S.C. § 1915(e)(2)(B), the court must dismiss any action brought in
forma pauperis if the action is (1) frivolous or malicious; (2) fails to state a claim on
which relief may be granted; or (3) seeks monetary relief against a defendant who is
immune from such relief.
A complaint may be dismissed for failure to state a claim if it fails “to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). While a complaint need not contain detailed factual allegations,
a plaintiff’s allegations must include more than labels and conclusions. Id. The court
must determine whether the complaint contains “enough facts to state a claim to
relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009). 	Although the plausibility standard is not equivalent to a
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“probability requirement, . . . it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. at 678 (quoting Twombly, 550 U.S. at 556).
In addition, the Court must read Plaintiff’s pro se complaint indulgently, see
Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s allegations as true,
unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S.
25, 33 (1992).
III. 	Analysis
Best sues Defendant Cuccia in her individual capacity for an alleged violation
of his First Amendment rights. 	(Count I) 	(ECF No. 1, PageID.43-45.) 	Best alleges
that after he told Defendant Cuccia that he intended to file a complaint against her,
she took adverse action by filing a formal complaint against him five to six weeks
later with the OSC. 	(Id.) 	In order to establish a First Amendment retaliation claim,
a plaintiff must show that: (1) he was engaged in protected conduct; (2) an adverse
action was taken against him that would deter a person of ordinary firmness from
engaging in that conduct; and (3) the adverse action was motivated by the protected
conduct. 	Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). 	Best
alleges that he engaged in protected conduct by threatening to file a complaint
against Defendant Cuccia and Defendant Cuccia then initiated a disciplinary action
against Best. At this stage of the pleadings, it is the opinion of the undersigned that
Best has alleged a plausible retaliation claim against Defendant Cuccia.
Plaintiff alleges that Defendant Thompson denied him due process under the
Fourteenth Amendment. 	(Counts II-VI) 	(ECF No. 1, PageID.46-47.) 	Best alleges
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that Thompson never disclosed that the statement from Mack Cornelison would be
used against him at the hearing. 	(Id., PageID.47.) 	Plaintiff implies that he could
have 	introduced 	a 	statement 	from 	witness 	Vipond 	to 	undermine 	Cornelison’s
credibility. 	(Id.) 	Plaintiff says that he was never informed that Amy Stokes was a
co-complaining witness even though she had never met Best. (Id.)
Best asserts that he made several requests for reasonable accommodation due
to his “cognitive impairments and logistical barriers imposed by his housing status”
that were denied or ignored by Thompson. 	(Id., PageID.48.) 	Best asserts he was
denied additional time to review the evidence against him and postponement of the
hearing to a more reasonable time than 5:30 am PT since he was living in Oregon at
the time of hearing. (Id.) Further, Best asserts that Thompson denied him access to
video recordings from January 11, 18, and 25, 2024, all witnesses’ names, and all
unredacted witness statements. 	(Id., PageID.49.) 	Best asserts that allowing him
only 60 minutes to review evidence before the hearing despite his requests for more
time due to his mental impairments violated due process. 	(Id., PageID.50.) 	Best
asserts that Thompson’s failure to fully disclose witnesses and evidence denied him
a meaningful opportunity to respond to the allegations and to present evidence during
the hearing. 	(Id.) 	Best asserts that he was denied the opportunity to have an
impartial decision maker. 	Best says that Thompson failed to inform the hearing
chairperson or panel that video footage was missing or unpreserved, or to provide all
the witness statements including those that were more favorable to Best. 	(Id.,
PageID.50-51.) 	Best asserts that Thompson failed to disclose all the evidence and
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circumstances and only selectively presented evidence during the hearing to mislead
the hearing chairperson and panel. (Id., PageID.53.)
Educational 	institutional 	disciplinary 	decisions 	such 	as 	suspension 	or
expulsion implicate protected property interests and due process. 	Doe v. Univ. of
Cincinnati, 872 F.3d 393, 399 (6th Cir. 2017). Nevertheless, a federal court’s review
of a student disciplinary decision is limited:
In 2005, the Sixth Circuit said that—despite the significant private
interest that derives from “the lifelong impact that expulsion can have
on a young person”—a federal court’s review of a student disciplinary
decision is “circumscribed.” Flaim v. Med. Coll. of Ohio, 418 F.3d 629,
638 (6th Cir. 2005). The Court is “limited to determining whether the
procedures used by [the university] were constitutional.” Id. Therefore,
the 	review 	consists 	of 	“consider[ing] 	the 	additional 	procedures
requested, any error-reducing benefit those procedures might have, and
the burden on [the university] of adding those additional procedures.”
Id. In any event, “there are two basic due process requirements: (1)
notice, 	and 	(2) 	an 	opportunity 	to 	be 	heard.” 	Id. 	at 	634.
Doe v. N. Michigan Univ., 393 F. Supp. 3d 683, 693 (W.D. Mich. 2019). 	Harsher
sanctions such as expulsion may require more formal procedures. Id.
At this stage of the proceedings, it is the opinion of the undersigned that Best
has asserted facts that plausibly state a claim for relief regarding his due process
violations against Defendant Thompson.
Best also asserts that Defendant Thompson in her official capacity denied his
rights 	under 	the 	Americans 	with 	Disabilities 	Act 	and 	Section 	504 	of 	the
Rehabilitation Act when she failed to provide more time to review the evidence or
postpone the hearing to allow him to meaningfully participate from Oregon. 	(Id.,
PageID.59.) 	Best says he was given only 60 minutes before the hearing to review the
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evidence against him. 	When he asked for accommodation, his requests were either
denied by Thompson or were never answered. (Id., PageID.59.)
Title II of the ADA provides, in pertinent part, that no qualified individual with
a disability shall, because of that disability, “be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any
such entity.” Mingus v. Butler, 591 F.3d 474, 481-82 (6th Cir. 2010) (citing 42 U.S.C.
§ 12132). 1 	To state a claim under the ADA, a plaintiff must show that he is “(1)
disabled under the statute, (2) otherwise qualified for participation in the program,
[services or activities], and (3) being excluded from participation in, denied the
benefits 	of, 	or 	subjected 	to 	discrimination 	under[,] 	the 	program, 	[services, 	or
activities] by reason of his disability.” S.S. v. E. Ky. Univ., 532 F.3d 445, 453 (6th
Cir.2008). 	The term “qualified individual with a disability” includes “an individual
with a disability who, with or without . . . the provision of auxiliary aids and services,
1 	Similarly, § 504 of the RA provides in pertinent part:
No otherwise qualified individual with a disability in the United States,
as defined in section 705(20) of this title, shall, solely by reason of her or
his disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance or under any program or
activity conducted by any Executive agency or by the United States
Postal Service.
29 U.S.C. § 794(a). “Because the ADA sets forth the same remedies, procedures, and
rights as the Rehabilitation Act . . . claims brought under both statutes may be
analyzed together.” 	Thompson v. Williamson County, 219 F.3d 555, 557, n. 3 (6th
Cir. 2000) (citing Maddox v. University of Tenn., 62 F.3d 843, 846, n. 2 (6th Cir.
1995)).
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meets the essential eligibility requirements for the receipt of services or participation
in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2).
The proper defendant under a Title II claim is the public entity or an official
acting in his or her official capacity. Carten v. Kent State Univ., 282 F.3d 391, 396-
97 (6th Cir. 2002). Here, Best states that he is mentally disabled and he was denied
accommodation requests by Thompson to review evidence and to postpone the
student conduct hearing.
At this stage of the proceeding, it is the opinion of the undersigned that Best
has stated a plausible claim for relief under the ADA and Section 504 of the
Rehabilitation Act against Defendant Thompson.
Best alleges that Sgt. Molonado denied him due process by refusing to provide
the January 11 and 18, 2024 video footage of the events at issue. 	(Count VII and
Count VIII) (ECF No. 1, PageID.54-57.) Best alleges that Sgt. Molonado stated that
the January 11, 2024, footage showed that the events were “just out of the sight of
the camera.” (Id., PageID.54.) Best says that this establishes that the camera footage
was available. 	(Id.) 	Best says that the January 18 video footage – which was
produced in December 2024, several months after the July hearing, from the same
camera – shows the same massage kiosk that would have been depicted in the
January 11 video. (Id., PageID.55.) 	Best asserts that if the January 11 video footage
was preserved, it would have shown his interaction with Schabes and other staff and
students that day. (Id.) 	Further, Best says that Molonado made an additional false
statement to his FOIA request by stating that both the January 11 and January 18
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2024, videos were overwritten and were unavailable due to a 90-day retention
schedule. 	(Id., PageID.56.) 	Best says he received the January 18 video in late
December 2024, several months after his hearing had concluded and well after
Molonado responded that the video did not exist. (Id., PageID.56.) Best asserts that
Molonado’s deliberately false representations denied him exculpatory video evidence
that he could have used to establish his innocence of the charges. (Id, PageID.57.)
In the opinion of the undersigned, Best has stated a plausible claim for relief
against Defendant Molonado.
Finally, Best asserts state law defamation claims against Defendants Schabes,
Sobania, Cuccia, and Cornelison. 	(Counts X-XIII) (ECF No. 1, PageID.61-69.) Best
alleges that each of 	these Defendants made false statements that led to the
disciplinary hearing and the sanctions imposed against him. Under Michigan law, to
state a prima facie case of defamation a Plaintiff must allege: 	(1) a false and
defamatory statement concerning the plaintiff, (2) an unprivileged communication to
a third party, (3) fault amounting at least to negligence on the part of the publisher,
and (4) either actionability of the statement irrespective of special harm (defamation
per se) or the existence of special harm caused by publication (defamation per quod).
Bowles v. Macomb Community College, 558 F. Supp. 3d 539, 552-552 (E.D. Mich.
2021). 	In the opinion of the undersigned, Plaintiff cannot establish that the
statements used during Plaintiff’s disciplinary investigation and made to the OSC
were unprivileged.
A statement is privileged if the following elements are met: “(1) good faith, (2)
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an interest to be upheld, (3) a statement limited in its scope to this purpose, (4) a
proper occasion, and (5) publication in a proper manner and to proper parties only.”
Id. at 553 (quoting Prysak v. R.L. Polk Co, 193 Mich. App. 1, 15 (1992)).
A qualified privilege to defame exists for all communications made upon
matters in which “the party communicating has an interest, or in
reference to which he has a duty to a person having a corresponding
interest or duty.” Tumbarella v. Kroger Co., 85 Mich. App. 482, 493, 271
N.W.2d 284, 289 (1978) (quoting Bacon v. Michigan Cent. R. Co., 66
Mich. 166, 170, 33 N.W. 181, 182 (1887)). The privilege is applicable
where “the occasion casts upon the defendant a duty, or right, to
communicate to another in regard to some matter of special concern to
one or both or to others for the protection of society, or some interest he
represents.” Bolton v. Walker, 197 Mich. 699, 706, 164 N.W. 420, 423
(1917).
Id. at 553. The Court must decide whether a statement is privileged and whether the
privilege may be overcome by allegations of malice. 	Garwood v. Baker Coll. Of
Clinton Twp., No. 314360, 2014 WL 4437681, at *3 (Mich. Ct. App. Sept. 9, 2014).
Once a court determines a qualified privilege exists, a plaintiff may
overcome it “only by showing that the statement was made with actual
malice, i.e., with knowledge of its falsity or reckless disregard of the
truth.” Prysak, 193 Mich. App. 1 at 15, 483 N.W.2d at 636. The “reckless
disregard” standard “is not measured by whether a reasonably prudent
man 	would 	have 	published 	or 	would 	have 	investigated 	before
publishing, but by whether the publisher in fact entertained serious
doubts concerning the truth of the statements published.” Grebner v.
Runyon, 	132 	Mich. 	App. 	327, 	333, 	347 	N.W.2d 	741, 	744 	(1984).
Bowles, at 554.
Best 	argues 	that 	Defendants 	Schabes, 	Sobania, 	Cuccia, 	and 	Cornelison
authored statements that were used by the OSC during Best’s disciplinary hearing.
Best alleges that Schabes stated that Best placed his left hand “just above her breast”
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and did so without consent. (ECF No. 1, PageID.62.) Best denies this allegation and
says that he was given consent and further says that Schabes stated that “there was
nothing sexual about it.” (Id.)
Similarly, Best alleges that Sobania stated that Best was “loud and yelling”
and had “jabbed his elbow” into Sobania “like a knife.” (Id., PageID.64.) 	Best asserts
that he spoke in a conversational tone and did not jab his elbow or cause Sobania any
pain. (Id.)
Best alleges that Cuccia falsely accused Best of touching massage students
without their permission. 	(Id., PageID.65.) 	Best says that this was a false and
unprivileged statement. 	Finally, Best says that Cornelison’s statements to OSC were
that Best stated that “females are not equipped to be in the massage program” and
Best had engaged in a “20-minute loud rant.” (Id., PageID.67.) 	Best denies each of
these assertions and says that the allegations were false.
First, each of these statements were given to the OSC for a limited purpose of
conducting a disciplinary investigation and, as alleged by Best, used during the
disciplinary hearing. 	The statements were disclosed between parties – Defendants
and the OSC – sharing a mutual interest in encouraging the reporting of harassment,
and non-consensual touching of students. The statements were witness perceptions
of what occurred during their interactions with Best.
Based on the circumstances as alleged by Best, it is respectfully recommended
that the Court find that the statements were privileged, because they were made for
a limited purpose involving the disciplinary proceeding. 	See Rosenboom v. Vanek,
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182 Mich. App. 113, 451 N.W.2d 520 (1989) (University student’s statement to facility
department chair that she was sexually assaulted by a member of the department,
fell within the “shared interest” privilege).
Best may overcome the privilege only by properly alleging that each Defendant
acted with malice. 	A plaintiff must plead actual malice with specificity. 	Guzall v.
Michigan State University, 2022 WL 4586568, *9 (Mich. App. Sept. 29, 2022).
In the opinion of the undersigned, Best’s complaint fails to allege that each of
the above witness statements were made with malice. Best generally asserts malice
in his complaint in a conclusory manner. (ECF No. 1, PageID.61, 63, 65, 66, 69) (Best
states “[w]here discovery shows “actual malice” . . . punitive damages are available”
and that discovery will show that Defendants acted with “actual malice.”) 	Best has
failed to plead malice with specificity. Guzall, at *9.
Again, the statements were merely perceptions of what Defendants believed
had happened during their interactions with Best, and the statements were made to
the OSC for a disciplinary investigation and a hearing. 	The statements were
Defendants’ observations as either witnesses to the incidents or witness/victims of
non-consensual touching. 	A plaintiff cannot establish that a statement was made
with malice where the statement involves the “surrounding circumstances in which
it was made” and is “substantially true.” 	Garwood, at *6. 	Here, Plaintiff does not
contest that the incidents occurred in some manner. 	Rather, based upon his
subjective asserted intent he challenges the perceptions of the witnesses, the
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loudness of his voice during the encounters, and how the witnesses felt about their
encounter with him.
IV. Recommendation
The undersigned respectfully recommends that the Court dismiss Best’s
defamation or libel claims (Counts X-XIII) against Defendants Schabes, Sobania,
Cuccia, and Cornelison, thus dismissing Defendants Schabes, Sobania, and
Cornelison from this action.
It is further recommended that the Court serve the complaint against
Defendant Cuccia on Best’s First Amendment retaliation claim (Count I), on
Defendant Thompson on Best’s Fourteenth Amendment due process claims, and
ADA 	and 	Rehabilitation 	Act 	claims 	(Counts 	II-VI, 	IX), 	on 	Defendant 	Sgt.
Molonado on Best’s Fourteenth Amendment due process claim and on Defendant
Sustaita for declaratory and injunctive relief.
Dated: 	October 28, 2025 	/s/ `ttÜàxÇ ixÜÅttà
MAARTEN VERMAAT
U. S. MAGISTRATE JUDGE
NOTICE TO PARTIES
Any objections to this Report and Recommendation must be filed and served within
fourteen days of service of this notice on you. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P.
72(b). All objections and responses to objections are governed by W.D. Mich. LCivR
72.3(b). Failure to file timely objections may constitute a waiver of any further right
of appeal. United States v. Walters, 638 F.2d 947 (6th Cir. 1981); see Thomas v. Arn,
474 U.S. 140 (1985).
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