[Cite as Reed v. N. Cent. Correctional Inst., 2010-Ohio-6621.]

                                       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




JOHN REED

        Plaintiff

        v.

NORTH CENTRAL CORRECTIONAL INSTITUTION

        Defendant

Case No. 2010-04050-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                           FINDINGS OF FACT
        {¶ 1} 1)       Plaintiff, John Reed, an inmate formerly incarcerated at defendant,
North Central Correctional Institution (NCCI), alleged several items of his personal
property were confiscated by NCCI staff on or about January 23, 2009 and
subsequently destroyed without any authorization.                       Plaintiff explained the alleged
confiscated property included two sets of Koss headphones, one CD player, one
adapter, fifteen CDs, a box containing clothing, photographs, and a set of hair trimmers.
Plaintiff filed this complaint seeking to recover $314.88, the estimated value of the
above listed property items. Payment of the filing fee was waived. In his complaint,
plaintiff submitted receipts for two sets of Koss headphones (dated March 23, 2009 and
June 30, 2008), a CD player (dated March 19, 2008), and multiple clothing items (dated
June 12, 2007). Plaintiff’s damage claim of $314.88 reflects the purchase price of a CD
player, one set of Koss headphones, and multiple clothing items received on or about
June 12, 2007.
        {¶ 2} 2)       Defendant        acknowledged             NCCI   staff   confiscated        a    set    of
headphones from plaintiff on January 12, 2009 and these headphones were
subsequently destroyed as contraband.         Defendant classified the headphones as
contraband due to the fact “the headphones had been altered by the name and number
being scratched off of them.” On March 23, 2009, defendant issued plaintiff a “Conduct
Report” for stealing which noted property items were confiscated from plaintiff and
declared contraband due to a conclusion by NCCI personnel that the confiscated
property consisted of stolen property owned by various inmates. No evidence was
submitted to establish the disposition of the property confiscated from plaintiff’s
possession on March 23, 2009. Plaintiff was charged with stealing property incident to
the March 23, 2009 “Conduct Report,” but was found not guilty of the charge.
Defendant issued another “Conduct Report” on March 24, 2009 charging plaintiff with
possession of contraband.      According to this “Conduct Report,” a light owned by
another inmate was confiscated from plaintiff’s possession. Plaintiff pled guilty to the
March 24, 2009 possession of contraband charge.
         {¶ 3} 3)   On April 10, 2009 plaintiff filed an “Inmate Property Theft/Loss
Report” (theft report) reporting that multiple property items he owned had been stolen
on or about March 26, 2009, during a period when he was housed in a segregation unit.
Plaintiff asserted the following items had been stolen from his locker box: ten CDs, one
blue sweat suit, one blue bath towel, one CD player, various food stuffs, one package of
batteries, headphones, white tennis shoes, “whites,” and personal hygiene items. None
of the alleged stolen property was recovered. Defendant submitted a copy of plaintiff’s
property inventory compiled on June 2, 2009 incident to a transfer from NCCI. The
following items relevant to this claim are listed:     two sets of headphones (one set
classified as contraband due to the fact the property had another inmate’s name
engraved on it), seven CDs, two towels, one washcloth, one pair of undershorts, six
pairs of socks, one pair of sweat pants, one pair of gym shorts, and one pair of gym
shoes.     A subsequent inventory dated June 24, 2009 compiled after plaintiff was
transferred to the Ross Correctional Institution (RCI) lists the following items relevant to
this claim: a radio and headphones.
         {¶ 4} 4)   Plaintiff filed a response contending he owned property that was
confiscated and destroyed without any authorization by defendant.
                                CONCLUSIONS OF LAW
      {¶ 5} 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.
      {¶ 6} 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;
Mussivand v. David (1989), 45 Ohio St. 3d 314, 318, 544 N.E. 2d 265.
      {¶ 7} 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.
      {¶ 8} 4)     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.
      {¶ 9} 5)     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} 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.
      {¶ 11} 7)    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, to any
essential 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.
      {¶ 12} 8)    It has been previously held, an inmate plaintiff may recover the value
of confiscated contraband property destroyed by agents of defendant when those
agents acted without authority or right to carry out the property destruction. Berg v.
Belmont Correctional Institution (1998), 97-09261-AD; Wooden v. Ohio Dept. of Rehab.
& Corr., Ct. of Cl. No. 2004-01958-AD, 2004-Ohio-4820; Hemsley v. N. Cent.
Correctional Inst., Ct. of Cl. No. 2005-03946-AD, 2005-Ohio-4613; Mayfield v. Richland
Correctional Inst., Ct. of Cl. No. 2005-07976-AD, 2006-Ohio-358.
       {¶ 13} 9)   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 in regard to the fact he was the rightful owner
of any confiscated property.
       {¶ 14} 10) Plaintiff has no right to pursue a claim for destroyed property in which
he cannot prove any right of ownership. DeLong v. Department of Rehabilitation and
Correction (1988), 88-06000-AD.       Defendant cannot be held liable for contraband
property that plaintiff has no right to possess.           Beaverson v. Department of
Rehabilitation and Correction (1988), 87-02540-AD; Radford v. Department of
Rehabilitation and Correction (1985), 84-09071.
       {¶ 15} 11) An inmate plaintiff is barred from pursuing a claim for the loss of use
of restricted property when such property is declared impermissible pursuant to
departmental policy. Zerla v. Dept. of Rehab. and Corr. (2001), 2000-09849-AD.
       {¶ 16} 12) An inmate maintains no right of ownership in property which is
impermissibly altered and therefore, has no right to recovery when the altered property
is lost or destroyed. Watley v. Ohio Department of Rehabilitation and Correction, Ct. of
Cl. No. 2005-05183-AD, jud, 2005-Ohio-4320; Watson v. Ohio State Penitentiary, Ct. of
Cl. No. 2007-05229-AD, 2008-Ohio-2848.
       {¶ 17} 13) Evidence has shown some confiscated property was altered and
consequently was considered impermissible. No recovery can be had for the loss or
destruction of impermissible altered property. See Kemp v. Ohio State Penitentiary, Ct.
of Cl. No. 2006-02587-AD, 2006-Ohio-7247.
       {¶ 18} 14) 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




JOHN REED

      Plaintiff

      v.

NORTH CENTRAL CORRECTIONAL INSTITUTION

      Defendant

      Case No. 2010-04050-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:

John Reed, #538-582             Gregory C. Trout, Chief Counsel
P.O. Box 45699                  Department of Rehabilitation
Lucasville, Ohio 45699          and Correction
                                770 West Broad Street
                                Columbus, Ohio 43222
RDK/laa
8/31
Filed 10/7/10
Sent to S.C. reporter 1/21/11
