[Cite as Chasteen v. Mansfield Corr. Inst., 2011-Ohio-7062.]



                                                         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




ADAM CHASTEEN

        Plaintiff

        v.

MANSFIELD CORRECTIONAL INSTITUTION

        Defendant

Case No. 2010-13059-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶1}     Plaintiff, Adam Chasteen, an inmate formerly incarcerated at defendant,
Mansfield Correctional Institution (ManCI), filed an amended complaint on April 12,
2011, alleging that mail sent to him by his fiancee, Rachel Lynch, “was withheld in
excess of two weeks without any notification” to him. Plaintiff further asserted that he
“had experienced prior instances of misconduct and prejudice from mailroom staff
preceding this incident.” Plaintiff related that he filed a grievance and requested that the
rest of the contents not in question be returned to him. Plaintiff indicated that the mailing
from Ms. Lynch included three photographs of his deceased father, a letter from Ms.
Lynch, two relationship questionnaires, and a fifteen-page research report handwritten
by plaintiff, along with miscellaneous pages drafted by plaintiff and pertaining to his
personal business endeavors.
        {¶2}     According to plaintiff, he notified ManCI staff on May 15, 2009, that the
withheld materials were to be mailed to Ms. Lynch; however he learned that the
materials were instead forwarded to defendant’s central office Publication Screening
Committee (PSC) on May 14, 2009, for review. Plaintiff alleged that the mail was never
received by the PSC and that it remained lost until it was “forwarded to the Dayton
Correctional Institution” in June 2010, and then returned to him, in part, on March 16,
2011.       Plaintiff asserted the following items were not turned over to him: three
photographs of his deceased father, a letter written to him by Ms. Lynch, and one of the
two questionnaires compiled by Ms. Lynch. In addition, plaintiff’s fifteen-page research
report was deemed to be “inappropriate” and plaintiff was not permitted to possess it;
however, plaintiff claimed he was not provided with a satisfactory explanation for its
exclusion.
        {¶3}    Plaintiff stated that he suffered emotional distress due to the loss of the
photographs and the letter from his fiancee. In addition, plaintiff suggested that ManCI
staff intentionally misplaced his mail as a form of retaliation against him.                     Plaintiff
concluded that his rights had been violated and argued that the court should “enjoin”
defendant from violating the Ohio Administrative Code and defendant’s internal policies.
Plaintiff requested compensatory damages in the amount of $1,500.00, “for the loss of
irreplaceable personal property,“ and “$1,000.00 in damages for emotional distress
caused by staff misconduct and continual violation” of defendant’s policies.1 Payment
of the filing fee was waived.
        {¶4}    Defendant admitted liability for the loss of three photographs and four
pieces of paper. Defendant acknowledged the following items were returned to plaintiff:
Bargain Genius .com, Reference Book Library, website listings (three pages),
scholarships, grant resources, music directory (four pages), relationship questionnaire
x1, contents page of letter. However, in regard to the book report, defendant asserted
this was properly withheld pursuant to Administrative Rule 5120-9-17.
        {¶5}    Ohio Adm. Code 5120-9-17, states as follows:
        {¶6}    “(A) Mail in the form of first class letters or electronic mail addressed to an
inmate shall not be withheld except as provided in this rule. There shall be no limitation
on the number of first class letters that an inmate may receive nor the number of


        1
         Initially, it should be noted that this court does not recognize entitlement to damages for mental
distress and extraordinary damages for simple negligence involving property loss. Galloway v.
Department of Rehabilitation and Correction (1979), 78-0731-AD; Berke v. Ohio Dept. of Pub. Welfare
(1976), 52 Ohio App. 2d 271, 6 O.O. 3d 280, 369 N.E. 2d 1056. Consequently, the claim for such
damages is denied and shall not be further considered. The court shall address plaintiff’s claim based on
persons with whom an inmate may correspond.
       {¶7}    “(B) Inspection of incoming mail:
       {¶8}    “(1) All mail, including electronic mail, other than legal mail, shall be
opened and may be read or copied in the institution mail office and inspected for the
presence of contraband, unauthorized forms of funds, and other threats to the security
and safety of the institution. The written portion of the mail shall then be promptly
delivered to the inmate, unless withheld in accordance with paragraph (G) of this rule.
       {¶9}    “* * *.
       {¶10} “(C) The warden or his designee shall determine the disposition of
contraband pursuant to rule 5120-9-55 of the Administrative Code. The contraband may
be returned to the sender, confiscated as evidence, held for the benefit of the inmate-
addressee, or otherwise disposed of in a manner consistent with the law.
       {¶11} “ * * * .
       {¶12} “(G) Mail, including electronic mail, that presents a threat to the security
and safety of the institution, its staff or inmates, may be withheld from the inmate-
addressee. No material or correspondence will be considered to present a such a threat
solely on the basis of its appeal to a particular ethnic, political, racial or religious group.
To constitute a such a threat, the correspondence must meet at least one of the
following criteria:
       {¶13} “(1) The correspondence incites, aids, or abets criminal activity or
violations of departmental rules, such as, but not limited to, rioting, extortion, illegal drug
use or conveyance of contraband;
       {¶14} “(2) The correspondence incites, aids, or abets physical violence against
others, such as, but not limited to, instructions in making, using, or converting weapons;
       {¶15} “(3) The correspondence incites, aids, or abets escapes, such as, but not
limited to, instructions on picking locks or digging tunnels;
       {¶16} “(4) The correspondence is in code or cipher.
       {¶17} “(H) Procedures for withholding correspondence are as follows:
       {¶18} “(1) The initial decision to withhold the correspondence will be made by
the officer charged with inspecting it, with the concurrence of the mail room supervisor.
       {¶19} “(2) The inmate-addressee and the author of the correspondence will be

the standard measure of damages for property loss.
notified, in writing, that the correspondence was withheld. * * *
         {¶20} “(3) The notification will be sent to the author and the inmate-addressee
within seven calendar days of the decision to withhold, unless the warden determines
that the notification will interfere with the conduct of a pending investigation.
         {¶21} “(4) Decisions to withhold mail, including electronic mail, may be appealed
in writing by the author to the warden or his designee within fifteen calendar days of the
date of the mailing of the notification. The appeal should explain why the
correspondence does not present a threat to the security and safety of the institution, its
staff or inmates.
         {¶22} “(5) The written appeal and the correspondence will be considered by the
warden or designee who shall determine whether the correspondence will be withheld
or delivered to the inmate.
         {¶23} “(6) Any correspondence withheld from an inmate-addressee will be
retained during the pendency of the appeal or for the time in which an appeal may be
filed.
         {¶24} “(7) If it is determined on appeal that the correspondence does not present
a threat to the safety and security of the institution, its staff or inmates, the
correspondence will be immediately delivered to the inmate-addressee.
         {¶25} “(8) If it is determined on appeal that the correspondence presents a threat
to the safety and security of the institution, its staff or inmates, or, if no appeal is taken,
the mail may be returned to the author, held as evidence for criminal prosecution or a
disciplinary proceeding, or destroyed.
         {¶26} “(I) Mail, including printed electronic mail, in the possession of an inmate
may, when approved by the warden or his designee, be seized, read, and copied where
a reasonable belief exists that it may contain evidence of a violation of federal or state
law or departmental rules. If a staff member reasonably believes there is a present risk
of destruction of such mail, it may be seized and forwarded to the warden or his
designee for review. * * * .”
         {¶27} Plaintiff filed a response essentially reiterating the allegations of his
complaint.      Plaintiff contended that the research report “is merely a creative
interpretation of his education and the contents of a book acquired via Inter Library
Loan” while plaintiff was housed at ManCI. Plaintiff further argued that he has not been
afforded the right to have the research report reviewed by the PSC, which plaintiff
asserted is a violation of his right to due process. Indeed, plaintiff maintained that
“every single aspect of the mailing unlawfully withheld by Defendant is in violation of
every applicably provision of the Due Process Clause and OAC § 5120.”                 Plaintiff
included an affidavit from Ms. Lynch detailing the contents of the mailing she sent to
plaintiff in April 2009.   In addition, plaintiff again raised the issue of his emotional
distress and associated damage claim.
       {¶28} Plaintiff maintained that ManCI staff engaged in repeated intentional acts
when they allegedly withheld plaintiff’s mail in retaliation for his use of the grievance
procedure. To determine if ManCI should bear responsibility for an employee’s wrongful
act, a finding must be made, based on the facts presented, whether or not the injury-
causing act was manifestly outside the course and scope of employment. Elliott v. Ohio
Dept. of Rehab. & Corr. (1994), 92 Ohio App. 3d 772, 775, 637 N.E. 2d 106; Thomas v.
Ohio Dept. of Rehab. & Corr. (1988), 48 Ohio App. 3d 86, 89, 548 N.E. 2d 991; and
Peppers v. Ohio Dept. of Rehab. & Corr. (1988), 50 Ohio App. 3d 87, 90, 553 N.E. 2d
1093. It is only where the acts of state employees are motivated by actual malice or
other such reasons giving rise to punitive damages that their conduct may be outside
the scope of their state employment. James H. v. Dept. of Mental Health and Mental
Retardation (1980), 1 Ohio App. 3d 60, 61, 1 OBR 6, 439 N.E. 2d 437. The act must be
so divergent that it severs the employer-employee relationship. Elliott, at 775 citing
Thomas, at 89, and Peppers, at 90.
       {¶29} Malicious purpose encompasses exercising “malice,” which can be
defined as the willful and intentional design to do injury, or the intention or desire to
harm another, usually seriously, through conduct that is unlawful or unjustified. Jackson
v. Butler Cty. Bd. of Cty. Commrs. (1991), 76 Ohio App. 3d 448, 453-454, 602 N.E. 2d
363, citing Teramano v. Teramano (1966), 6 Ohio St. 2d 117, 118, 35 O.O. 2d 144, 216
N.E. 2d 375; and Bush v. Kelly’s Inc. (1969), 18 Ohio St. 2d 89, 47 O.O. 2d 238, 247
N.E. 2d 745.
       {¶30} The Supreme Court of Ohio has established that an employer is liable for
the tortious conduct of its employee only if the conduct is committed within the scope of
employment and if the tort is intentional, the conduct giving rise to the tort must facilitate
or promote the business of which the employee was engaged. Byrd v. Faber (1991), 57
Ohio St. 3d 56, 565 N.E. 2d 584, citing Little Miami RR. Co. v. Wetmore (1869), 19 Ohio
St. 110, and Taylor v. Doctors Hosp. (1985), 21 Ohio App. 3d 154, 21 OBR 165, 486
N.E. 2d 1249.
      {¶31} Further, an intentional and willful tort committed by an employee for his
own purposes constitutes a departure from the employment, so that the employer is not
responsible. Szydlowski v. Ohio Dept. of Rehab. & Corr. (1992), 79 Ohio App. 3d 303,
607 N.E. 2d 103, citing Vrabel v. Acri (1952), 156 Ohio St. 467, 46 O.O. 387, 103 N.E.
2d 564.    The facts of this case, taken as plaintiff asserted, would constitute an
intentional tort committed by defendant’s employees performed for their own personal
purpose. Following this rationale, plaintiff cannot maintain a cause of action against
defendant for the intentional malicious act of its employees.
      {¶32} To the extent that plaintiff alleges claims based upon retaliation, action
against the state under Section 1983, Title 42, U.S. Code may not be brought in the
Court of Claims because the state is not a “person” within the meaning of Section 1983.
See, e.g., Jett v. Dallas Indep. School Dist. (1989), 491 U.S. 701, 109 S. Ct. 2702, 105
L. Ed. 2d 598; Burkey v. Southern Ohio Correctional Facility (1988), 38 Ohio App. 3d
170, 528 N.E. 2d 607; White v. Chillicothe Correctional Institution (Dec. 29, 1992),
Franklin App. No. 92-AP-1229. Indeed, claims of retaliation are to be treated as an
action for alleged violations of constitutional rights under Section 1983, Title 42, U.S.
Code. Thus, this court is without jurisdiction to hear those claims. Moreover, although
plaintiff seeks redress for alleged violations of his constitutional due process rights,
such claims are dismissed. It is well-settled that this court lacks jurisdiction to hear a
claim that asserts constitutional violations.   Gersper v. Ohio Dept. of Hwy. Safety
(1994), 95 Ohio App. 3d 1, 641 N.E. 2d 1113.
      {¶33} In addition, 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 violated internal prison regulations and the Ohio
Administrative Code, he fails to state a claim for relief. See Sharp v. Dep't of Rehab. &
Corr., Ct. of Cl. No. 2008-02410-AD, 2008-Ohio-7064, ¶5.
       {¶34} The Supreme Court of Ohio has held that “[t]he language in R.C. 2743.02
that ‘the state’ shall ‘have its liability determined *** in accordance with the same rules
of law applicable to suits between private parties ***’ means that the state cannot be
sued for its legislative or judicial functions or the exercise of an executive or planning
function involving the making of a basic policy decision which is characterized by the
exercise of a high degree of official judgment or discretion.” Reynolds v. State (1984),
14 Ohio St. 3d 68, 70, 14 OBR 506, 471 N.E. 2d 776; see also Von Hoene v. State
(1985), 20 Ohio App. 3d 363, 364, 20 OBR 467, 486 N.E. 2d 868. Prison administrators
are provided “wide-ranging deference in the adoption and execution of policies and
practices that in their judgment are needed to preserve internal order and discipline and
to maintain institution security.” Bell v. Wolfish (1979), 441 U.S. 520, 547, 99 S. Ct.
1861, 60 L. Ed. 2d 447. The trier of fact finds that in accordance with Ohio Adm Code §
5120-9-17 (G), defendant identified a reasonable basis for withholding the confiscated
research report in that its contents presented information that posed a threat to the
safety and security of the institution.
       {¶35} Finally, in order to prevail on his lost property claim, 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.
       {¶36}      “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.              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.       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. 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.
       {¶37}       Negligence on the part of defendant has been shown in respect to the
loss of three photographs, one four-page letter, and one two-page questionnaire. Billups
v. Department of Rehabilitation and Correction (2001), 2000-10634-AD, jud. Tyler v.
Ohio Dept. of Rehab. & Corr., Ct. of Cl. No. 2007-07299-AD, 2008-Ohio-3418.
       {¶38}       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.          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.
       {¶39}       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. The trier of fact finds that the value of plaintiff’s property that has been
confirmed as lost while under the control of ManCI staff amounts to $5.00. Defendant is
liable to plaintiff for that amount.




                                                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
ADAM CHASTEEN

        Plaintiff

        v.

DEPT. OF REHAB. AND CORR.

        Defendant

         Case No. 2010-13059-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 $5.00. Court costs are assessed against defendant.




                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:

Adam Chasteen, #566-894                           Gregory C. Trout, Chief Counsel
P.O. Box 740                                      Department of Rehabilitation
London, Ohio 43140                                and Correction
                                                  770 West Broad Street
                                                  Columbus, Ohio 43222

SJM/laa
10/28
Filed 11/8/11
Sent to S.C. reporter 4/5/12
