[Cite as Hughes v. Warren Corr. Inst., 2011-Ohio-6965.]



                                      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




MARVIN HUGHES

       Plaintiff

       v.

WARREN CORRECTIONAL INSTITUTION

       Defendant

Case No. 2011-07893-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                         FINDINGS OF FACT
        {¶1}    Plaintiff, Marvin Hughes, an inmate incarcerated at defendant, Warren
Correctional Institution (WCI), filed this complaint maintaining that WCI personnel
honored two forged $75.00 cash withdrawal slips and consequently withdrew that
amount from his inmate account. Plaintiff related that “[t]hey were signed by Sgt. J.
Maggard but Sgt. Maggard says he doesn’t recall signing. * * * Following an
investigation it was found that [the payee] was the girlfriend of inmate Powell who was
in position to forge the cash slips. He was a trustee in segregation. That is where the
incident occurred from. Powell has since transferred to Lucasville prison.”
        {¶2}    Plaintiff denied having any knowledge of the forgery and denied signing
the forged instrument. Consequently, plaintiff filed this action contending that he
suffered damages as a result of defendant’s act in honoring a forged instrument.
Plaintiff seeks recovery of damages in the amount of $150.00, representing the amount
improperly withdrawn and not replaced in his inmate trust account. Payment of the filing
fee was waived.
       {¶3}    Plaintiff submitted copies of the forged withdrawal slips; one was dated
March 10, 2011, the other was not dated. Under the signature line on the slip appears
plaintiff’s name in cursive writing. The trier of fact finds that the inmate’s signature does
not match the signature submitted with plaintiff’s complaint. Both cash slips were
designated as approved by “J. Maggard.” The slips also contain a witness line
designated for the signature of a WCI employee.          The signature appearing on the
witness line is essentially illegible.
       {¶4}    Defendant denied liability and contended that WCI personnel did not
negligently permit another inmate to misappropriate plaintiff’s funds. Defendant relied
on the assertions of Sgt. Maggard who maintained that he “always checks
identifications before signing cash slips.” In a report prepared by Investigator Greg
Craft regarding several incidents of fraudulent cash slips reported by inmates Davis,
Yett, and Hughes, having occurred during March 2011, Craft noted that the “names and
addresses of the individuals that were sent checks from WCI were researched through
the DOTS portal system and the only match was for [a visitor] for inmate Powell 509-
664. Powell was recently transferred from WCI to SOCF but prior to his transfer was in
segregation with the other inmates involved in this incident.” In addition, in an incident
report prepared by WCI Account clerk supervisor Venus Lanman, she noted that inmate
Davis had complained about the money that was removed from his account while he
was in segregation. Lanham pointed out that she compared a cash slip Davis had
signed for a prior withdrawal with the alleged forgeries and noted that the “signatures
by the inmate appear to be different.” Nonetheless, Craft opined that WCI was not
negligent in that Sgt. Maggard attested that he signed the cash slips after he had
confirmed the identities of the inmates.
       {¶5}    Plaintiff filed a response essentially reiterating the allegations in his
complaint.
                                    CONCLUSIONS OF LAW
       {¶6}    The mere allegation that a theft 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.
       {¶7}    Defendant is not responsible for actions of other 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.
       {¶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}   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.
       {¶10} 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.
       {¶11} 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.
       {¶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. In the instant action, the trier of fact
finds the statements offered by plaintiff to be credible.
       {¶13} Defendant may bear liability for failure to properly monitor an inmate
plaintiff’s account by either failing to record deposits or in making unauthorized
withdrawals. See Nelms v. Southeastern Corr. Inst., Ct. of Cl. No. 2007-01401-AD,
2007-Ohio-7087. Plaintiff, in the instant action, has submitted sufficient evidence to
prove that defendant acted improperly in handling the funds in his inmate account. In
addition, evidence supports the conclusion that defendant failed to protect or recover
the funds from plaintiff’s account.
       {¶14} Plaintiff has proven that he suffered damages in the amount of $150.00.
See Lonero v. Lebanon Corr. Inst., 2009-01719-AD, 2009-Ohio-6359.
                                 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

MARVIN HUGHES

        Plaintiff

        v.

WARREN CORRECTIONAL INSTITUTION

        Defendant

Case No. 2011-07893-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 plaintiff in the amount of $150.00. Court costs are assessed against defendant.



                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:

Marvin Hughes, #557-708                           Gregory C. Trout, Chief Counsel
P.O. Box 120                                      Department of Rehabilitation
Lebanon, Ohio 45036                               and Correction
                                                  770 West Broad Street
                                                  Columbus, Ohio 43222


9/1
Filed 9/21/11
Sent to S.C. reporter 1/27/12
