[Cite as Braun v. Toledo Corr. Inst., 2011-Ohio-3857.]



                                       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




JEFFREY R. BRAUN

       Plaintiff

       v.

TOLEDO CORRECTIONAL INSTITUTION

       Defendant


        Case No. 2010-11676-AD


Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                          FINDINGS OF FACT
        {¶ 1} On November 5, 2010, plaintiff, Jeffrey R. Braun, an inmate formerly
incarcerated at defendant's Toledo Correctional Institution ("ToCI"), filed this action
alleging several items of his personal property were lost while under the control of ToCI
staff. Plaintiff explained he was transferred to segregation on April 6, 2010, and his
personal property was packed and sent to storage incident to the transfer. Plaintiff
pointed out he regained possession of his property in July 2010, and discovered the
following items were missing: one KTV digital color TV, Koss headphones, Sony CD
player, Masey Kool Junior fan, Coby AC/DC adapter, and a clip-on lamp.
        {¶ 2} Plaintiff has alleged his property was lost or stolen as a proximate cause
of negligence on the part of ToCI personnel in handling his property. Plaintiff noted he
was not present during the pack-up of his property but insisted that all of the listed
property was located in his locked cell prior to his transfer to segregation. Plaintiff filed
this complaint seeking to recover $311.62 the total replacement cost of the listed
property. Payment of the filing fee was waived.
      {¶ 3} Plaintiff submitted an invoice for the purchase of Koss headphones, a CD
player, and a KTV television set, dated February 12, 2008.
      {¶ 4} Defendant contended plaintiff failed to provide sufficient evidence to
establish he delivered Koss headphones, a CD player, a fan, an adapter, and a clip-on
lamp, into the custody of ToCI personnel incident to a transfer from the general
population to a segregation unit. Defendant disputed plaintiff’s assertion he actually
possessed the listed property with the exception of the KTV television set on April 6,
2010, when he was transferred to segregation. Defendant acknowledged Corrections
Officer Mel Brown confirmed that he packed up plaintiff’s television but the other
claimed items were not present in plaintiff’s cell during the pack up. Defendant denied
any of plaintiff’s property, with the exception of the television set,     was lost as a
proximate result of negligence on the part of defendant.
      {¶ 5} Plaintiff filed a response suggesting defendant either fabricated or
improperly altered the pack-up sheet dated April 6, 2010. In addition, plaintiff seeks an
order from the court prohibiting defendant from using any monies awarded as
reimbursement for outstanding court costs.
                                   CONCLUSIONS OF LAW
      {¶ 6} 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),
Case No. 2006-03532-AD                    -3-                MEMORANDUM DECISION




Case No. 2006-03532-AD                    -3-                MEMORANDUM DECISION



176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. In the instant action, the trier of fact
does not find the statements offered by plaintiff concerning the delivery and subsequent
loss of his property, with the exception of the television set, to be particularly
persuasive.
       {¶ 7} 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.
       {¶ 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} Negligence on the part of defendant has been shown in respect to the
issue of property protection. Billups v. Department of Rehabilitation and Correction
(2001), 2000-10634-AD.
       {¶ 11} As trier of fact, this court has the power to award reasonable damages
based on evidence presented. Sims v. Southern Ohio Correctional Facility (1988), 61
Ohio Misc. 2d 239, 577 N.E. 2d 160.
       {¶ 12} Damage assessment is a matter within the function of the trier of fact.
Litchfield v. Morris (1985), 25 Ohio App. 3d 42, 25 OBR 115, 495 N.E. 2d 462.
Reasonable certainty as to the amount of damages is required, which is that degree of
certainty of which the nature of the case admits. Bemmes v. Pub. Emp. Retirement
Sys. Of Ohio (1995), 102 Ohio App. 3d 782, 658 N.E. 2d 31.
       {¶ 13} The standard measure of damages for personal property is market value.
McDonald v. Ohio State Univ. Veterinary Hosp. (1994), 67 Ohio Misc. 2d 40, 644 N.E.
2d 750.
       {¶ 14} Evidence has shown plaintiff’s television set was more than two years old
when the incident forming the basis of this claim occurred. Based on the fact the
television set constituted depreciable property, the court finds plaintiff has suffered
damages in the amount of $100.00. See Martin v. Ohio Dep't Rehab. & Corr., Ct. of Cl.
No. 2009-03151-AD, 2009-Ohio-6364.
       {¶ 15} R.C. 5120.133 governs the transmission of funds from an inmate account
to satisfy court-ordered payment of court costs. Ohio Adm. Code 5120-5-03 provides
the mechanism for the collection of court-ordered costs from inmates. The court of
claims lacks jurisdiction to order defendant to refrain from following the mandates
promulgated by another court. See Abdussatar v. Mansfield Corr. Inst., Ct. of Cl. No.
2007-09429-AD, 2008-Ohio-3419, State v. Brown, 156 Ohio App. 3d 120, 2004-Ohio-
558.
Case No. 2006-03532-AD            -5-   MEMORANDUM DECISION




Case No. 2006-03532-AD            -5-   MEMORANDUM DECISION




                             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




JEFFREY R. BRAUN

      Plaintiff

      v.

TOLEDO CORRECTIONAL INSTITUTION

      Defendant

      Case No. 2010-11676-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 $100.00. Court costs are assessed against defendant.




                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:

Jeffrey R. Braun, #504-477                        Gregory C. Trout, Chief Counsel
P.O. Box 45699                                    Department of Rehabilitation
Lucasville, Ohio 45699                            and Correction
                                                  770 West Broad Street
                                                  Columbus, Ohio 43222
SJM/laa
3/24
Filed 4/21/11
Sent to S.C. reporter 8/5/11
