[Cite as Huddleson v. Lebanon Corr. Inst., 2011-Ohio-3957.]



                                      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




STANLEY RAY HUDDLESON

       Plaintiff

       v.

LEBANON CORR. INST.

       Defendant

        Case No. 2010-12371-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                         FINDINGS OF FACT

        {¶ 1} Plaintiff, Stanley Huddleson, an inmate formerly incarcerated at defendant,
Lebanon Correctional Institution (LeCI), alleged most of his personal property was
stolen from his cell housing unit on August 25, 2010, at a time when he was away from
the unit. Plaintiff recalled he left the cell (#3j34) at approximately 2:15 p.m. on August
25, 2010, to seek mental health treatment. Plaintiff further recalled that he did not have
a cellmate at the time in that his former cellmate had moved to another area earlier the
same day. Plaintiff related he locked the cell door and that when he was seen by the
mental health team, they placed him on a twenty-four hour “close watch.” According to
plaintiff, he was not permitted to return to his cell or to be present during the pack-up of
his property.      Plaintiff pointed out that when he was released from close watch on
August 26, 2010, at approximately 5:30 p.m., he discovered that most of his property
was missing. Plaintiff insisted he locked his cell door before he left the unit. Plaintiff
alleged the cell door was opened by LeCI staff some time after the 4:00 p.m. count and
his property was stolen by other inmates prior to his property being packed and stored.
Plaintiff suggested defendant’s corrections officers (COs) were negligent in that they
should have deadlocked the cell door and thus prevented the door from being opened.
       {¶ 2} In addition, plaintiff related that a camera was located near his cell door
and that had the tape been reviewed, LeCI staff should have been able to verify a theft
occurred and to identify the offenders. Plaintiff submitted copies of his grievance forms
and a copy of the August 25, 2010 inmate property record (inventory). Plaintiff filed this
complaint seeking to recover $478.37, the total replacement cost of the property
claimed. The filing fee was paid.
       {¶ 3} Defendant denied liability in this matter contending plaintiff “offered no
specific proof regarding his allegations that the corrections officer let another inmate into
his cell.”   Defendant maintained that the COs were interviewed and that Sergeant
McDaniel, “after receiving Plaintiff’s theft/loss report, stated that he reviewed the
recorded video and that ‘he did not observe any inmate go in or out of [Plaintiff]’s cell.’
Additionally, both officers who were on duty at the time of the alleged incident deny
opening Plaintiff’s cell door or using the electronic door panel to open any doors after
the 4:00 p.m. count.”     Further, defendant asserted that “the officer who packed up
Plaintiff’s belongings, which Plaintiff claims occurred after his property was stolen,
stated that the cell door was locked when he went in.” Defendant argued that plaintiff
failed to prove his cell door was unlocked by any LeCI employee or that the items were
lost as a result of neglect on part of the staff. Finally, defendant pointed out that plaintiff
failed to prove he owned or possessed all of the property he claimed as missing.
       {¶ 4} Plaintiff filed a response essentially reiterating the allegations contained in
his complaint. Plaintiff insisted that COs improperly opened his cell door and were
responsible for facilitating the theft of his property. Plaintiff asserted he possessed all of
the claimed missing property at the time he left his cell to seek mental health treatment
and that all of such property was locked in his cell before he left the area.          Plaintiff
contended his cellmate could not have been responsible for the cell door being opened
in that he had transferred to another cell earlier that same day. In addition, plaintiff
asserted defendant intentionally delayed responding to his grievances in an effort to
thwart his attempts to provide evidence in support of this claim.
       {¶ 5} On April 20, 2011, plaintiff submitted a letter requesting appointment of
counsel.     However, no statutory provision allows plaintiff to have representation of
counsel in a civil matter. Plaintiff’s request is denied and will not be addressed further.
                                    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 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} Plaintiff’s failure to prove delivery of his claimed missing 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.
       {¶ 13} 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.
       {¶ 14} 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.
       {¶ 15} 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.
       {¶ 16} 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.
       {¶ 17} 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.
       {¶ 18} 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.
       {¶ 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.
       {¶ 21} 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.
       {¶ 22} 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, Brady v. Lebanon Correction Inst., Ct. of Cl. No. 2010-
01743-AD, 2010-Ohio-5456.
       {¶ 23} Moreover, 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, 479, 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.” Sharp v. Dept of Rehab. & Corr., Ct. of Cl. No. 2008-
02410-AD, 2008-Ohio-7064, ¶5. Accordingly, to the extent plaintiff alleges that LeCI
staff may have violated internal prison regulations and the Ohio Administrative Code, he
fails to state a claim for relief.
                                 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




STANLEY RAY HUDDLESON

        Plaintiff

        v.

LEBANON CORR. INST.

        Defendant

         Case No. 2010-12371-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:

Stanley Ray Huddleson, #476-821                   Gregory C. Trout, Chief Counsel
5787 State Route 63                               Department of Rehabilitation
P.O. Box 120                                      and Correction
Lebanon, Ohio 45036                               770 West Broad Street
                                                  Columbus, Ohio 43222
SJM/laa
4/14
Filed 5/5/11
Sent to S.C. reporter 8/10/11
