[Cite as Francis v. Mansfield Corr. Inst., 2011-Ohio-3758.]



                                       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




ALAN FRANCIS

        Plaintiff

        v.

MANSFIELD CORRECTIONAL INSTITUTION

        Defendant

        Case No. 2010-10041-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


                                          FINDINGS OF FACT
        {¶ 1} Plaintiff, Alan Francis, an inmate incarcerated at defendant, Mansfield
Correctional Institution (ManCI), alleged his locker box was stolen from his cell housing
unit on September 2, 2009, at a time when he and his cellmate were away from the unit.
Plaintiff recalled he left the cell (#239, Pod 1, D) at approximately 1:15 p.m. on
September 2, 2009, to go to a medical appointment.            Plaintiff further recalled his
cellmate was at work in the Ohio Penal Industries Building and did not return until after
3:00 p.m. Plaintiff related he locked the cell door and then went back and double-
checked the door was "secure." Plaintiff pointed out that when he returned from the
medical appointment at approximately 1:55 p.m. he discovered the cell door was open
and his locker box was missing. According to plaintiff, the cell door was locked when he
left and at some time during his absence property stored in the cell had been stolen.
Plaintiff suggested defendant’s corrections officers (CO) should have noticed the
unlocked cell door and prevented the theft or accosted the offender in the act. Plaintiff
asserted ManCI staff conducted a search of the nearest five cells on either side of his
cell after he reported the theft. Plaintiff submitted copies of his grievance forms for an
earlier incident wherein plaintiff explained that prior to the theft ManCI had instituted a
strict policy such that cell doors were to remain locked and COs were required to check
all doors every thirty minutes. Thus, plaintiff contended his property was stolen and
unrecovered as a proximate cause of negligence on the part of ManCI personnel both in
failing to follow internal policy by checking the cell door while he was away for over thirty
minutes and in failing to conduct a proper search for the reported stolen items. Finally,
plaintiff contended that defendant failed to comply with the administrative rules for
grievance procedures. Consequently, plaintiff filed this complaint seeking to recover $
167.41, the total replacement cost of the property claimed. Payment of the filing fee
was waived.
       {¶ 2} Defendant denied liability in this matter contending plaintiff "offered no
specific proof that the items were lost as a result of neglect on part of the staff."
Defendant advised that the ManCI employees on duty were interviewed and they
denied opening the cell door for another inmate other than plaintiff’s cellmate. The
employees also confirmed they conducted a search for plaintiff’s locker box. Defendant
argued that plaintiff failed to prove his cell door was unlocked by any ManCI employee,
thereby facilitating a theft. Defendant noted plaintiff had complained his cellmate had
left the door open on prior occasions.
       {¶ 3} Plaintiff filed a response insisting his cell door was improperly opened by
defendant's employee; an act that allowed an unidentified individual access to the
property stored inside. Plaintiff contended his cellmate could not have been responsible
for the cell door being opened in that he was at work and did not return until well after
the theft occurred. In addition, plaintiff asserted defendant fabricated a report from a
CO and intentionally ignored his grievances in an effort to deprive him of evidence to
support this claim.
                                    CONCLUSIONS OF LAW
       {¶ 4} 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, 788 N.E.2d 1088 citing Menifee v. Ohio
Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707.
       {¶ 5} "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, 798 N.E.2d
1121, 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.
       {¶ 6} 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.
       {¶ 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} 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} 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.
       {¶ 10} 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.
       {¶ 11} 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 or ordinary or reasonable care. Williams.
       {¶ 12} 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.
       {¶ 13} 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.
       {¶ 14} 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.
       {¶ 15} 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.
       {¶ 16} 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.
       {¶ 17} 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.
       {¶ 18} 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.
       {¶ 19} 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. Accordingly, to the extent
that plaintiff alleges that ManCI staff somehow violated internal prison regulations and
the Ohio Administrative Code, he fails to state a claim for relief. See Sharp v. Dept of
Rehab. & Corr., Ct. of Cl. No. 2008-02410-AD, 2008-Ohio-7064, ¶5.


                               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




ALAN FRANCIS

      Plaintiff

      v.

MANSFIELD CORRECTIONAL INSTITUTION

      Defendant

      Case No. 2010-10041-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:

Alan Francis, #562-142          Gregory C. Trout, Chief Counsel
P.O. Box 788                    Department of Rehabilitation
Mansfield, Ohio 44901           and Correction
                                770 West Broad Street
                                Columbus, Ohio 43222
SJM/laa
3/24
Filed 4/13/11
Sent to S.C. reporter 7/29/11
