[Cite as Finley v. Dept. of Rehab. & Corr., 2010-Ohio-6183.]

                                       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




KEITH FINLEY

       Plaintiff

       v.

DEPT. OF REHABILITATION AND CORRECTIONS

       Defendant

        Case No. 2009-08535-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)       Plaintiff, Keith Finley, an inmate incarcerated at defendant’s Southern
Ohio Correctional Facility (SOCF), filed this action alleging multiple items of his personal
property were lost or stolen while under the control of SOCF staff. Plaintiff explained he
was transferred from the SOCF general population to a segregation unit on April 1,
2009 and his personal property was packed and stored in the SOCF property vault until
his release from segregation. Plaintiff asserted that when he regained possession of his
property on September 4 or 8, 2009, he discovered several items were missing
including: a radio cassette player, a wedding band, thirteen t-shirts, nine pairs of socks,
five pairs of boxer shorts, an equalizer, and one microwave bowl. Plaintiff valued the
alleged missing property items at $915.55.                     In his complaint, plaintiff requested
damages in the amount of $2,500.00 for property loss. Payment of the filing fee was
waived.
        {¶ 2} 2)       Plaintiff submitted a copy of his April 1, 2009 “Inmate Property
Record” (Inventory) compiled when he was originally transferred to segregation. All
alleged missing property items are listed on this inventory.
       {¶ 3} 3)    Defendant acknowledged plaintiff was placed in a security control
unit on April 1, 2009 and his personal property was inventoried, packed, and delivered
into the custody of SOCF staff. Defendant explained that plaintiff’s security control
status was altered when he was assigned to Level 4B on April 16, 2009 and he was
consequently permitted to regain possession of some property items that had been
stored in the SOCF property room since April 1, 2009. Defendant further explained the
SOCF employee who returned property on April 16, 2009 used the April 1, 2009
inventory designating the returned property by circling the items listed on this inventory.
Both plaintiff and defendant submitted copies of the April 1, 2009 property inventory
which bears the notation “4B Breakdown 4-16-09.”           However, the inventory copy
defendant submitted bears a circle around “Radio” and “Ring/Wedding,” but the
inventory copy plaintiff submitted does not show any circled items. Defendant noted the
remainder of plaintiff’s property listed on the April 1, 2009 inventory was returned to his
possession on September 8, 2009 when he “was moved (from) 4B to 4A.”                    On
September 15, 2009 plaintiff reported the loss of a radio and a wedding ring and an
“Inmate Property Theft/Loss Report” (Theft Report) was filed by SOCF staff incident to
this report. Defendant submitted a copy of this Theft Report which contains information
showing plaintiff claimed his wedding ring and radio had been lost or stolen on or about
September 8, 2009. According to the Theft Report documentation, SOCF personnel
searched “long term storage” and conducted a “cell search” for plaintiff’s property but
were unable to locate a wedding ring or radio. The Theft Report does not list any
additional missing property Defendant maintained that all of plaintiff’s property listed on
the April 1, 2009 inventory was subsequently returned to his possession.
       {¶ 4} 4)    Plaintiff filed a response insisting his wedding ring and radio were lost
or stolen while under the control of SOCF personnel.
                                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)    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.
       {¶ 9} 5)    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} 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)   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 regarding the loss of any property.
       {¶ 12} 8)   Plaintiff has failed to prove a causal connection between the claimed
property loss and any breach of duty owed by defendant in regard to protecting inmate
property. Druckenmiller v. Mansfield Correctional Inst. (1998), 97-11819-AD.
       {¶ 13} 9)   Plaintiff has failed to prove, by a preponderance of the evidence, that
any of his property was lost or stolen as a proximate result of any negligent conduct
attributable to defendant. Fitzgerald v. Department of Rehabilitation and Correction
(1998), 97-10146-AD.
                               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




KEITH FINLEY

      Plaintiff

      v.

DEPT. OF REHABILITATION AND CORRECTIONS

      Defendant

      Case No. 2009-08535-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:

Keith Finley, #488-936                          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
7/2
Filed 8/6/10
Sent to S.C. reporter 12/10/10
