[Cite as Ahrns v. Lebanon Correctional Inst., 2010-Ohio-4784.]

                                      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




JAMES E. AHRNS

       Plaintiff

       v.

LEBANON CORRECTIONAL INSTITUTION

       Defendant

        Case No. 2009-09027-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                         FINDINGS OF FACT
        {¶ 1} 1)       Plaintiff, James E. Ahrns, an inmate incarcerated at defendant,
Lebanon Correctional Institution (LeCI), alleged several items of personal property were
stolen from his cell housing unit on May 18, 2009 at a time when he was away from the
unit. Plaintiff recalled he left the cell to go to the LeCI dining hall and then to yard
recreation and locked the cell door before leaving the area.          Plaintiff stated, “upon
returning to the block, my cellmate and I discovered our cell door ajar and our property
missing.” Plaintiff noted he immediately reported the theft to LeCI employee Officer
O’Rourke. Plaintiff advised that “O’Rourke did not make any attempt to investigate the
theft or conduct a search or attempt to recover the property,” which included a hot pot, a
power strip, a clear digital clock, a radio, ear buds, a digital converter box with remote
control, a universal remote control, a twenty-two ounce mug, a calculator, a pair of
shower shoes, state issue t-shirts, socks, and undershorts, a bottle of baby powder, and
a tube of toothpaste.         Plaintiff submitted a copy of an “Inmate Property Theft/Loss
Report” (Theft Report) that was filed incident to his reporting the theft. According to
information contained in the Theft Report, no investigation was conducted, no search for
any property was performed, and no action at all was taken by LeCI personnel other
than filing the Theft Report.
       {¶ 2} 2)      Plaintiff suggested Officer O’Rourke opened the cell door by “using
the electronic key box” thereby giving access to the cell and the property stored inside.
Plaintiff therefore, contended Officer O’Rourke acted negligently in opening the cell door
before ascertaining the identity of any particular inmate requesting the cell door be
opened.     Plaintiff filed this action asserting his property was stolen as a result of
negligence on the part of LeCI personnel in indiscriminately opening his cell door to
consequently facilitate a theft. Plaintiff seeks recovery of damages in the amount of
$133.69, the stated replacement cost of the claimed stolen property. Plaintiff related he
has receipts for his property, but he did not submit any receipts. Plaintiff also claimed
the loss of state issue clothing items and any claim for state issued property is denied.1
Payment of the filing fee was waived.
       {¶ 3} 3)      Defendant denied liability in this matter arguing that plaintiff did not
offer sufficient evidence to prove any of his property was stolen as a proximate cause of
negligence on the part of LeCI staff in opening his cell door. Defendant explained that
LeCI employees Officer O’Rourke and Officer Weiss were assigned to plaintiff’s
cellblock on May 18, 2009 and both denied opening plaintiff’s cell door. Additionally, the
LeCI Inspector reported, “O’Rourke was interviewed and denied the allegations of using
the electronic key box to open any cell doors and stated that he was assigned to range
1 and the CO’s desk on the date in question and that since Ahrns lived on range 3 in
cell 34 he would not have any reason to unlock the cell door.” Defendant noted Officer
Weiss was assigned to range 3 on May 18, 2009 where plaintiff was housed. However,
according to the LeCI Inspector Weiss “denied opening any cell doors without properly
verifying that inmates lived in the respective cell.” Defendant did not provide any written
statements about the events on May 18, 2009 from either Officer O’Rourke or Officer
Weiss. Defendant denied any of plaintiff’s property was stolen or unrecovered as a


       1
           This court has previously held that property in an inmate’s possession which cannot be
validated by proper indicia of ownership is contraband and therefore, no recovery is permitted when such
property is lost or stolen. Wheaton v. Department of Rehabilitation and Correction (1988), 88-04899-AD.
Consequently, plaintiff’s claim for the loss of state issued property items such as socks, t-shirts, and
undershorts is denied since he has failed to offer sufficient proof to show he owned the property. See
result of a negligent act or omission on the part of LeCI personnel.
       {¶ 4} 4)      Plaintiff filed a response contending his property was stolen when his
cell was unlocked by an employee of defendant. Plaintiff submitted identical typed
statements from two fellow inmates, John David Anderson and Timothy Wilson who
both advised they were in plaintiff’s cellblock on May 18, 2009. Both Anderson and
Wilson provided the following listed statements concerning the conduct of Officer
O’Rourke:
       {¶ 5} “That I assert that it is common practice for Corrections Officer O’Rourke
to use the key box to open cell doors rather than individually checking Inmate
Identification badges and comparing them to Cell Identification badges. This key box is
located near the officers’ desk and is of great distance from most cell doors and is
usually used when an officer does not feel like walking the ranges to unlock the doors.
       {¶ 6} “That Corrections Officer O’Rourke would open whatever cell door an
Inmate would call out from the ranges without looking first or checking to see if that is
actually the inmate’s cell location.
       {¶ 7} “That the opening of doors in this manner had led to many cells being
burglarized and it is a common practice at the Lebanon Correctional Institution for
officers to open whatever door an inmate calls out over the ranges.
       {¶ 8} “That any inmate who wishes to gain access to another inmates cell can
do so simply by calling out that particular cell number to the officers using the key box.”
                                    CONCLUSIONS OF LAW
       {¶ 9} 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.
       {¶ 10} 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, 798 N.E.
2d 1121, ¶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.

Sanford v. Ross Correctional Inst., Ct. of Cl. No. 2006-03494-AD, 2006-Ohio-7311.
       {¶ 11} 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.
       {¶ 12} 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.
       {¶ 13} 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.
       {¶ 14} 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.
       {¶ 15} 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 as well as the assertions of John David
Anderson and Timothy Wilson.
       {¶ 16} 8) 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 of ordinary or reasonable care. Williams.
       {¶ 17} 9) 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.
       {¶ 18} 10) 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.
        {¶ 19} 11) 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.
        {¶ 20} 12) 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.
        {¶ 21} 13) 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. In the instant case, the
bulk of the property items claimed were indistinguishable and, therefore, no duty to
search arose. Wallace v. Grafton Corr. Inst., Ct. of Cl. No. 2009-01743, 2009-Ohio-
5741.
        {¶ 22} 14) 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. Plaintiff has failed to offer proof he owned any of the
alleged stolen property.
        {¶ 23} 15) 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.
        {¶ 24} 16) 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




JAMES E. AHRNS

        Plaintiff

        v.

LEBANON CORRECTIONAL INSTITUTION

        Defendant

         Case No. 2009-09027-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:

James E. Ahrns, #528-686                          Gregory C. Trout, Chief Counsel
3791 St. Rt. 63                                   Department of Rehabilitation
P.O. Box 56                                       and Correction
Lebanon, Ohio 45036                               770 West Broad Street
                                                  Columbus, Ohio 43222
RDK/laa
Filed 6/4/10
Sent to S.C. reporter 10/1/10
