[Cite as Strange v. Lebanon Corr. Inst., 2011-Ohio-3853.]



                                       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




MR. WILLIAM F. STRANGE

       Plaintiff

       V.

LEBANON CORRECTIONAL INSTITUTION

       Defendant


        Case No. 2010-09922-AD


Clerk Miles C. Durfey

MEMORANDUM DECISION


                                          FINDINGS OF FACT
        {¶ 1} Plaintiff, William F. Strange, an inmate incarcerated at defendant, Lebanon
Correctional Institution (LeCI), filed this action alleging that several items of his personal
property were lost or stolen on June 8, 2009 as a proximate cause of negligence on the
part of LeCI staff.        Plaintiff related that he was transferred from the LeCI general
population to a segregation unit on June 8, 2009 for an undisclosed reason. Plaintiff’s
personal property was inventoried, packed, and delivered into the custody of LeCI
personnel incident to this transfer. Plaintiff claimed that his beard trimmers, belt, sweat
shirt, sweat pants, two bath towels, wash cloths, socks, handkerchiefs, fan, razors,
toothpaste, deodorant, and five soups, were missing and had not been packed. Plaintiff
submitted a copy of his property inventory compiled on June 8, 2009 by LeCI personnel.
This inventory does bear plaintiff’s signature certifying that the items listed represent “a
complete and accurate inventory of all my personal property.” Moreover, plaintiff signed
the same inventory sheet on June 23, 2009, verifying that all of the property listed on
the inventory had been returned to him.
      {¶ 2} Plaintiff also submitted   contraband slips prepared June 9, 2009, listing
items to be mailed out of the institution at plaintiff’s expense. Items relevant to this
claim include one sweat shirt, one towel, seven pair of socks, three handkerchiefs, and
one deodorant.
      {¶ 3} In his complaint, plaintiff alleged that the missing property was stolen from
his cell prior to his belongings being packed up and that defendant unreasonably
delayed packing his property incident to the transfer.       Plaintiff requested damage
recovery in the amount of $124.42, the stated total value of the alleged missing
property. Payment of the filing fee was waived.
      {¶ 4} Defendant denied liability in this matter contending that plaintiff failed to
offer any evidence to establish that any of his property was lost or stolen as a result of
any breach of any duty of care owed on the part of LeCI personnel in regard to inmate
property protection. Defendant specifically denied ever exercising control over many
items plaintiff claimed.   Defendant asserted that plaintiff failed to prove any of his
property was lost or stolen as a proximate cause of negligence on the part of LeCI staff.
      {¶ 5} Plaintiff filed a response noting that defendant violated internal policy when
packing his property on June 8, 2009, and during the subsequent grievance process.
                                   CONCLUSIONS OF LAW
      {¶ 6} 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} “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} 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} 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} 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} Plaintiff must produce evidence which affords a reasonable basis for the
conclusion that 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} 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 particularly persuasive regarding his claims of property loss.
       {¶ 13} Prison regulations, including those contained in the Ohio Administrative
Code, “are primarily designed to guide correctional officials in prison administration
rather than to confer rights on inmates.” State ex rel. Larkins v. Wilkinson, 79 Ohio St.
3d 477, 1997-Ohio-139, 683 N.E. 2d 1139, citing Sandin v. Conner (1995), 515 U.S.
472, 481-482, 115 S. Ct. 2293, 132 L. Ed. 2d 418. Additionally, this court has held that
“even if defendant had violated the Ohio Administrative Code, no cause of action would
exist in this court.        A breach of internal regulations in itself does not constitute
negligence.” Williams v. Ohio Dept. of Rehab. and Corr. (1993), 67 Ohio Misc. 2d 1, 3,
643 N.E. 2d 1182. Accordingly, to the extent plaintiff alleges that LeCI staff failed to
comply with internal prison regulations and the Ohio Administrative Code, he fails to
state a claim for relief.
       {¶ 14} Plaintiff cannot recover for property loss when he fails to produce sufficient
evidence to establish that defendant actually assumed control over the property.
Whiteside v. Orient Correctional Inst., Ct. of Cl. No. 2002-05751, 2005-Ohio-4455 obj.
overruled, 2005-Ohio-5068. Plaintiff failed to prove that defendant actually exercised
control over his alleged missing property incident to the June 8, 2009 transfer.
      {¶ 15} Plaintiff’s failure to prove delivery of the above listed property to defendant
constitutes a failure to show imposition of a legal bailment duty on the part of defendant
in respect to lost property.   Prunty v. Department of Rehabilitation and Correction
(1987), 86-02821-AD.
      {¶ 16} In order to recover against a defendant in a tort action, plaintiff must
produce evidence which furnishes a reasonable basis for sustaining his claim. If his
evidence furnishes a basis for only a guess, among different possibilities, as to any
issue in the case, he fails to sustain the burden as to such issue. Landon v. Lee
Motors, Inc. (1954), 161 Ohio St. 82, 53 O.O. 25, 118 N.E. 2d 147.
      {¶ 17} 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 that defendant breached a duty of ordinary or reasonable care. Williams.
      {¶ 18} 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.
      {¶ 19} 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.
      {¶ 20} 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. All items plaintiff claimed as stolen
were indistinguishable and consequently, defendant had no duty to search for the
reported stolen property.
      {¶ 21} Plaintiff has failed to show an causal connection between the loss of his
property listed and any breach of a duty owed by defendant in regard to protecting
inmate property. Druckenmiller v. Mansfield Correctional Inst. (1998), 97-11819-AD;
Melson v. Ohio Department of Rehabilitation and Correction (2003), Ct. of Cl. No. 2003-
04236-AD, 2003-Ohio-3615.
      {¶ 22} Plaintiff has failed to prove, by a preponderance of the evidence, that any
of his property was stolen or lost as a proximate result of any negligent conduct
attributable to defendant. Fitzgerald v. Department of Rehabilitation and Correction
(1998), 97-10146-AD.
                                  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




MR. WILLIAM F. STRANGE

          Plaintiff

          v.

LEBANON CORRECTIONAL INSTITUTION

          Defendant

          Case No. 2010-09922-AD

Clerk Miles C. Durfey


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.



                                                   ________________________________
                                                   MILES C. DURFEY
                                                   Clerk

Entry cc:

Mr. William F. Strange, #538-634                   Gregory C. Trout, Chief Counsel
3791 State Route #63                               Department of Rehabilitation
P.O. Box 56                                        and Correction
Lebanon, Ohio 45036-0056                           770 West Broad Street
                                                   Columbus, Ohio 43222
SJM/laa
3/30
Filed 4/21/11
Sent to S.C. reporter 8/5/11
