[Cite as Cargile v. Mansfield Correctional Inst., 2010-Ohio-5455.]

                                       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




WILLIAM CARGILE

        Plaintiff

        v.

MANSFIELD CORRECTIONAL INSTITUTION

        Defendant

        Case No. 2009-09680-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} Plaintiff, William Cargile, an inmate formerly incarcerated at defendant,
Mansfield Correctional Institution (ManCI), filed this action alleging multiple items of his
personal property were lost or stolen while under the control of ManCI personnel. On
March 20, 2009, plaintiff was transferred from the ManCI general population to a
segregation unit. Plaintiff’s personal property was inventoried, packed, and delivered
into the custody of ManCI staff incident to the March 20, 2009 transfer. Plaintiff pointed
out that after he had spent some days in segregation, his Fila boots that he had in his
possession were confiscated by ManCI staff and not returned. Furthermore, plaintiff
related that when he regained possession of his personal property he discovered his
eyeglasses, pair of Nike shoes, twenty photographs, eight envelopes, four t-shirts, four
socks, and four boxer underwear were not among the returned property.                        Plaintiff
alleged all the property items claimed were lost while under the control of ManCI
personnel and he has consequently filed this claim seeking to recover $2,230.00, the
stated value of the alleged missing property. Payment of the filing fee was waived.
       {¶ 2} Plaintiff submitted a copy of his “Inmate Property      Record” (inventory)
compiled when his property was packed on March 23, 2009 and delivered to defendant.
Among the property relevant to this claim, the inventory lists one pair of Fila gym shoes,
one t-shirt, six undershorts, one photo album, and one pair of reading glasses. The
inventory also lists three pairs of state issue shoes. No envelopes, Nike shoes, socks,
and additional t-shirts are listed.
       {¶ 3} Defendant admitting liability for the loss of plaintiff’s Fila shoes and
estimated the value of the shoes at $20.00. However, defendant specifically denied
liability for the loss of the remaining property items. Defendant explained “there is no
record of Plaintiff ever owning Nike shoes” when reviewing his past property records
(copies submitted). On March 25, 2009, defendant received a pair of tennis shoes
intended for plaintiff from an outside source. These shoes were returned to sender due
to the fact plaintiff was housed in a segregation unit at the time and consequently, not
permitted to receive such property.        Defendant noted plaintiff possessed a pair of
eyeglasses when his property was packed on March 23, 2009 at ManCI and an
inventory compiled on August 3, 2009 incident to his transfer to the Southern Ohio
Correctional Facility (SOCF) references one pair of eyeglasses. Defendant maintained
plaintiff failed to prove any eyeglasses were lost while under the control of ManCI staff
since one pair of eyeglasses were transferred with him to SOCF.              Additionally,
defendant noted plaintiff’s property inventory dated March 23, 2009 reflects he
possessed photographs and an inventory dated August 24, 2009 compiled in
preparation for the transfer to SOCF lists photographs. It should be pointed out the
August 3, 2009 property inventory compiled at SOCF does not list any photographs,
although plaintiff signed the document certifying the inventory as a “complete and
accurate” accounting of his personal property.         Defendant reported “[t]he socks,
underwear and t-shirts were all state issue and were replaced.” Defendant maintained
plaintiff did not suffer any economic damage as a result of the loss of these state issue
clothing items. Defendant contended plaintiff “has not shown proof of ownership of
photographs or Nike shoes.”           Defendant also contended plaintiff failed to prove
ownership of envelopes.
       {¶ 4} Plaintiff filed a response pointing out inconsistencies in all his property
inventories that were submitted. Plaintiff advised the eyeglasses that are listed on an
inventory dated August 3, 2009 were not owned by him, but rather belonged to another
inmate and were borrowed for reading purposes.         Plaintiff submitted a copy of his
property inventory dated March 11, 2010 and no eyeglasses are listed. This inventory
does list photographs. No personal shoes of any type are listed. Plaintiff asserted he
owned all the property items claimed and these items were lost while under the control
of ManCI staff. Plaintiff again requested the court grant judgment in his favor in the
amount of $2,230.00. Plaintiff did not produce any evidence other than his assertion to
establish that the property claimed had a value of $2,230.00.
                               CONCLUSIONS OF LAW
      {¶ 5} 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 Sanford v. Ross Correctional Inst., Ct. of Cl. No. 2006-03494-AD, 2006-
Ohio-7311. Additionally, plaintiff has failed to prove he owned any envelopes and a pair
of Nike shoes. All claims for the loss of socks, t-shirts, undershorts, envelopes, and
Nike shoes are denied.
      {¶ 6} 2)     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.
      {¶ 7} 3)     “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.
      {¶ 8} 4)     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.
       {¶ 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 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.
       {¶ 11} 7)   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.
       {¶ 12} 8)   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, as 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.
       {¶ 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 finds plaintiff’s
assertions regarding property loss are not particular persuasive.
       {¶ 14} 10) Plaintiff has failed to prove, by a preponderance of the evidence, any
of his photographs and eyeglasses were lost as a proximate result of any negligent
conduct attributable to defendant.      Fitzgerald v. Department of Rehabilitation and
Correction (1998), 97-10146-AD.
       {¶ 15} 11) Negligence on the part of defendant has been shown in respect to
the issue of protecting plaintiff’s boots after he was transferred to segregation on March
20, 2009. Billups v. Department of Rehabilitation and Correction (2001), 2000-10634-
AD.
       {¶ 16} 12) The standard measure of damages for personal property loss is
market value McDonald v. Ohio State Univ. Veterinary Hosp. (1994), 67 Ohio Misc. 2d
40, 644 N.E. 2d 750.
      {¶ 17} 13) 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.
      {¶ 18} 14) 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.
      {¶ 19} 15) Plaintiff has suffered damages in the amount of $30.00.




                              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




WILLIAM CARGILE

      Plaintiff

      v.

MANSFIELD CORRECTIONAL INSTITUTION

      Defendant

      Case No. 2009-09680-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 $30.00. Court costs are assessed against defendant.




                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:

William Cargile, #540-910                         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
6/16
Filed 7/14/10
Sent to S.C. reporter 11/5/10
