[Cite as Rachel v. Ohio Dept. of Reh. & Corr., 2011-Ohio-2490.]

                                      Court of Claims of Ohio
                                                                               The Ohio Judicial Center
                                                                       65 South Front Street, Third Floor
                                                                                  Columbus, OH 43215
                                                                        614.387.9800 or 1.800.824.8263
                                                                                   www.cco.state.oh.us




DANIEL J. RACHEL

       Plaintiff

       v.

OHIO DEPT. OF REHABILITATION AND CORRECTIONS

       Defendant

        Case No. 2010-07946-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} Plaintiff, Daniel J. Rachel, an inmate formerly incarcerated at defendant’s
Trumbull Correctional Institution (TCI), filed this action alleging his personal property
was stolen from his locked locker box inside his locked cell as a proximate cause of
negligence on the part of TCI staff. Plaintiff related he returned to his cell from lunch on
February 4, 2010 and “discovered my locked locker box in my locked cell had been
opened and the (contents) stolen.” Plaintiff pointed out he immediately reported the
theft to a TCI employee who responded by searching two cells in a different housing
unit where plaintiff’s former cellmate had been transferred. No property was recovered
incident to this search. Plaintiff noted he was subsequently informed (February 6, 2010)
by a fellow inmate that his shoes which had been stolen from his cell were being worn
by an inmate identified as “Benjamin a.k.a. Phillips.” Plaintiff further noted he was
informed that his additional property stolen from his cell was in the possession of inmate
Benjamin, who was attempting to sell the property.                Plaintiff advised he witnessed
inmate Benjamin wearing his shoes on February 6, 2010 and reported this information
to TCI employee, Officer Urbania, along with supplying Officer Urbania a list of the
property stolen on February 4, 2010. According to plaintiff, his shoes were still being
worn by inmate Benjamin on February 7, 2010.           Plaintiff stated, “I asked (Officer)
Urbania what was going on (and) [h]e said he could see him (Benjamin) wearing my
shoes and he lost the list I gave him and would I make up another which I gave him at
10:30 that day (February 7, 2010).” In his complaint, plaintiff maintained Officer Urbania
delayed conducting a search of inmate Benjamin’s cell until February 8, 2010 and could
not find any property that was stolen on February 4, 2010. Plaintiff contended the delay
by Officer Urbania in conducting a search of inmate Benjamin’s cell constituted
actionable negligence. Plaintiff recorded his shoes were subsequently recovered when
he observed the shoes being worn by another inmate. No other property stolen on
February 4, 2010 was recovered.
       {¶ 2} Plaintiff asserted TCI staff failed to make any reasonable attempt to
protect or recover his property items which included the following: two towels, two wash
cloths, one calculator, one baseball cap, one stocking cap, one t-shirt, one pair of
shorts, one radio, two sets of headphones, two television remote controls, twenty-five
envelopes, four pens, one pair of gloves, one twill cap, cherry KoolAid, garlic shells, five
Sunkist orange, one set of thermal underwear, and three bars of soap.               Plaintiff
requested damages in the amount of $165.97. Payment of the filing fee was waived.
       {¶ 3} Plaintiff submitted a handwritten statement from fellow inmate, Tom L.
Neville, who recorded that inmate Phillips (Benjamin) offered to sell him a pair of New
Balance 608 shoes.      Neville indicated he examined the shoes and saw the name
Rachel written in ink on the inside of each shoe. Neville noted Phillips (Benjamin) also
offered for sale two sets of headphones and two television remote controls.
       {¶ 4} Defendant acknowledged plaintiff’s property was stolen when an
unidentified individual broke into his locker box and removed the items stored inside.
However, defendant denied liability in this matter asserting plaintiff did not prove his
property was stolen or unrecovered as a result of TCI staff breaching any duty of care
owed to him. Defendant noted a search for plaintiff’s property was conducted after he
reported the theft, but no items were recovered. Defendant explained, “there was not
any theft/loss reports on file for this incident.” Defendant advised two searches were
conducted for plaintiff’s property, but no items were recovered. Defendant contended
the sole cause of plaintiff’s property loss was the act of another inmate.
       {¶ 5} Plaintiff filed a response insisting his property was not recovered due to
the fact that TCI employee Officer Urbania refused to search inmate Benjamin’s cell
after Benjamin was observed wearing plaintiff’s shoes. Plaintiff contended his property
was unrecovered because a prompt search was not conducted by TCI staff.
                                CONCLUSIONS OF LAW
       {¶ 6} 1)    In order to prevail, plaintiff must prove, by a preponderance of the
evidence, that defendant owed him a duty, that defendant breached that duty, and that
defendant’s breach proximately caused his injuries. Armstrong v. Best Buy Company,
Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573,¶8 citing Menifee v. Ohio Welding Products,
Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707.
       {¶ 7} 2)    “Whether a duty is breached and whether the breach proximately
caused an injury are normally questions of fact, to be decided by . . . the court . . .”
Pacher v. Invisible Fence of Dayton, 154 Ohio App. 3d 744, 2003-Ohio-5333,¶41, citing
Miller v. Paulson (1994), 97 Ohio App. 3d 217, 221, 646 N.E. 2d 521; Mussivand v.
David (1989), 45 Ohio St. 3d 314, 318, 544 N.E. 2d 265.
       {¶ 8} 3)    Although not strictly responsible for a prisoner’s property, defendant
had at least the duty of using the same degree of care as it would use with its own
property. Henderson v. Southern Ohio Correctional Facility (1979), 76-0356-AD.
       {¶ 9} 4)    This court in Mullett v. Department of Correction (1976), 76-0292-AD,
held that defendant does not have the liability of an insurer (i.e., is not liable without
fault) with respect to inmate property, but that it does have the duty to make “reasonable
attempts to protect, or recover” such property.
       {¶ 10} 5)   Plaintiff has the burden of proving, by a preponderance of the
evidence, that he suffered a loss and that this loss was proximately caused by
defendant’s negligence. Barnum v. Ohio State University (1977), 76-0368-AD.
       {¶ 11} 6)   Plaintiff must produce evidence which affords a reasonable basis for
the conclusion defendant’s conduct is more likely than not a substantial factor in
bringing about the harm. Parks v. Department of Rehabilitation and Correction (1985),
85-01546-AD.
       {¶ 12} 7)   The credibility of witnesses and the weight attributable to their
testimony are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St.
2d 230, 39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is
free to believe or disbelieve, all or any part of each witness’s testimony. State v. Antill
(1964), 176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. The court does not find
plaintiff’s assertions particular persuasive as well as the assertions of Tom L. Neville.
       {¶ 13} 8)   The allegation that a theft may have occurred is insufficient to show
defendant’s negligence. Williams v. Southern Ohio Correctional Facility (1985), 83-
07091-AD; Custom v. Southern Ohio Correctional Facility (1986), 84-02425. Plaintiff
must show defendant breached a duty of ordinary or reasonable care. Williams.
       {¶ 14} 9)   Defendant is not responsible for thefts committed by inmates unless
an agency relationship is shown or it is shown that defendant was negligent. Walker v.
Southern Ohio Correctional Facility (1978), 78-0217-AD.
       {¶ 15} 10) The fact that defendant supplied plaintiff with a locker box to secure
valuables constitutes prima facie evidence of defendant discharging its duty of
reasonable care. Watson v. Department of Rehabilitation and Correction (1987), 86-
02635-AD.     Defendant is not required to take extraordinary measures to provide
inmates means to secure their property. Andrews v. Allen Correctional Inst. (2009),
2008-09732-AD, 2009-Ohio-4268
       {¶ 16} 11) Defendant, when it retains control over whether an inmate’s cell door
is to be open or closed, owes a duty of reasonable care to inmates who are exclusively
forced to store their possession in the cell while they are absent from the cell. Smith v.
Rehabilitation and Correction (1978), 77-0440-AD.
       {¶ 17} 12) However, in the instant claim, plaintiff has failed to prove defendant
negligently or intentionally unlocked his cell door, and therefore, no liability shall attach
to defendant as a result of any theft based on this contention. Carrithers v. Southern
Ohio Correctional Facility (2002), 2001-09079-AD.
       {¶ 18} 13) Generally, defendant has a duty to conduct a search for plaintiff’s
property within a reasonable time after being notified of the theft. Phillips v. Columbus
Correctional Facility (1981), 79-0132-AD; Russell v. Warren Correctional Inst. (1999),
98-03305-AD.
       {¶ 19} 14) However, a search is not always necessary.               In Copeland v.
Department of Rehabilitation and Correction (1985), 85-03638-AD, the court held that
defendant had no duty to search for missing property if the nature of the property is
such that it is indistinguishable and cannot be traced to plaintiff.
       {¶ 20} 15) Plaintiff has failed to prove, by a preponderance of the evidence, that
defendant was negligent in respect to making any attempts to recover distinguishable or
indistinguishable stolen property. See Williams v. Dept. of Rehab. & Corr., Ct. of Cl. No.
2005-11094-AD, 2006-Ohio-7207.
       {¶ 21} 16) Plaintiff has failed to prove, by a preponderance of the evidence, that
any of his property was stolen or unrecovered as a proximate result of any negligent
conduct attributable to defendant.       Fitzgerald v. Department of Rehabilitation and
Correction (1998), 97-10146-AD; Hall v. London Correctional Inst., Ct. of Cl. No. 2008-
04803-AD, 2008-Ohio-7088.




                                 Court of Claims of Ohio
                                                                           The Ohio Judicial Center
                                                                   65 South Front Street, Third Floor
                                                                              Columbus, OH 43215
                                                                    614.387.9800 or 1.800.824.8263
                                                                               www.cco.state.oh.us




DANIEL J. RACHEL

      Plaintiff

      v.

OHIO DEPT. OF REHABILITATION AND CORRECTIONS

      Defendant

       Case No. 2010-07946-AD

Deputy Clerk Daniel R. Borchert


ENTRY OF ADMINISTRATIVE DETERMINATION
         Having considered all the evidence in the claim file and, for the reasons set forth
in the memorandum decision filed concurrently herewith, judgment is rendered in favor
of defendant. Court costs are assessed against plaintiff.



                                                  ________________________________
                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:

Daniel J. Rachel, #530-216                        Gregory C. Trout, Chief Counsel
P.O. Box 788                                      Department of Rehabilitation
Mansfield, Ohio 44901                             and Correction
                                                  770 West Broad Street
                                                  Columbus, Ohio 43222
RDK/laa
2/9
Filed 3/4/11
Sent to S.C. reporter 5/16/11
