[Cite as Sparks v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-7060.]



                                      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




BRYAN SPARKS

         Plaintiff

         v.

OHIO DEPT. OF REHABILITATION AND CORRECTION

         Defendant

         Case No. 2011-09454-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                         FINDINGS OF FACT
         {¶1}    Plaintiff, Bryan Sparks, an inmate incarcerated at defendant, Marion
Correctional Institution (MCI), asserted that numerous art supply items were destroyed
after he was improperly removed from the art recreation program at MCI on February
12, 2011. Plaintiff stated that he was asked to mail out the items but he refused since he
had no one who would accept the items for him. Plaintiff recalled that he asked to have
the items stored while he took the necessary steps to be reinstated to the program;
however this request was denied. According to plaintiff, he never should have been
removed from the program and his supplies were destroyed illegally, without a court
order.
         {¶2}    Plaintiff filed this complaint seeking to recover $2,063.98, which includes
$1,248.98 as the estimated replacement value of the destroyed art supplies, $315.00 for
legal research, $500.00 for mental anguish, and “costs.”1 Payment of the filing fee was


         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.
waived.
        {¶3}    Plaintiff submitted copies of “Cabinet Inventory” records purportedly
signed by an agent of defendant detailing the extensive amount of art supplies plaintiff
possessed as of March 2, 2011, and receipts dated July 20, 2010, and January 24, 26,
and 27, 2011, from art supply and woodcraft vendors listing purchases of various art
and woodworking supplies.           Plaintiff also prepared another list of the destroyed art
supplies with a total stated value of $417.91, two completed art projects valued as
follows: Maple fireman’s cross ($20.00) and NASCAR tractor/trailer ($500.00), and a
partially completed custom cycle ($75.00). In addition plaintiff listed various patterns,
drawings, magazines and catalogs totaling $100.00.
        {¶4}    Plaintiff included a copy of a “Disposition of Grievance” form dated June
16, 2011. The response states, in pertinent part: “Mr. Blankenship removed you from
the program without a conduct report. This was in violation and you will be replaced
back into the program because you did not receive a conduct report. You will be put
back into the program with all rights restored. This finds merit that there was a violation
of AR 5120-9-07, Conduct report and hearing officer procedures. You would not have
received a ticket for having to send your property out if you were not illegally kicked out
of the mushfake program. You are requesting to be reimbursed for the items that were
destroyed. * * * You will have to pursue this through the Court of Claims.”
        {¶5}    Defendant filed an investigation report admitting liability for the loss of
plaintiff’s art supplies but limiting the damage amount to the total plaintiff could verify
with receipts, $160.84.        Defendant did not dispute the validity of plaintiff’s Cabinet
Inventory lists. However, in the report from Institutional Inspector Smith he noted that in
the past, “Mr. Blankenship would allow offenders going home to leave their materials to
other offenders in the program” thus suggesting plaintiff did not purchase all of the art
supplies that he had possessed.
        {¶6}    Plaintiff filed a response on September 19, 2011, essentially reiterating the


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 court shall address
plaintiff’s claim based on the standard measure of damages for property loss. In addition, plaintiff’s time
spent performing legal research, as well as postage and copying expenses are not compensable in a
claim of this type. To the extent plaintiff seeks to include these costs in the damage claim the request is
denied and shall not be further addressed. See Lamb v. Chillicothe Corr. Inst. Ct. of Cl. No. 2004-01788-
AD, 2004-Ohio-1841, citing Hamman v. Witherstine (1969), 20 Ohio Misc. 77, 49 O.O. 2d 126, 252
allegations of the complaint. Plaintiff acknowledged that the NASCAR tractor/trailer had
been located and returned to him, however he noted that due to the delay, the buyer
was no longer willing to pay $500.00 and the next best offer was only $175.00.
                                      CONCLUSIONS OF LAW
       {¶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. In the instant claim the court finds
the assertions of plaintiff to be persuasive in regard to plaintiff possessing a significant
quantity of art supplies that were confiscated and destroyed.                However, insufficient
documentation has been submitted to support plaintiff’s claim that he paid for all of the
supplies that he possessed. Indeed, the court notes plaintiff filed an affidavit of
indigency averring that he has “no means of financial support and no assets of any
value.” In addition, the court does not find plaintiff’s assertions credible as to the lost
sale value of the NASCAR tractor/trailer.
       {¶8}    When destroying declared contraband, defendant is required to follow the
provisions of the Ohio Administrative Code.                Defendant did not offer sufficient
documentation to establish plaintiff agreed to or authorized the destruction of the
declared contraband articles.
       {¶9}    It has been previously held an inmate plaintiff may recover the value of
confiscated property destroyed by agents of defendant when those agents acted without
authority or right to carry out the property destruction. Berg v. Belmont Correctional
Institution (1998), 97-09261-AD; Wooden v. Ohio Dept. of Rehab. & Corr., Ct. of Cl. No.
2004-01958-AD, 2004-Ohio-4820; Hemsley v. N. Cent. Correctional Inst., Ct. of Cl. No.
2005-03946-AD, 2005-Ohio-4613; Mayfield v. Richland Correctional Inst., Ct. of Cl. No.
2005-07976-AD, 2006-Ohio-358, Brunner v. N. Central Corr. Inst., Ct. of Cl. No. 2006-
08020-AD, 2007-Ohio-6386.
       {¶10} Evidence has shown defendant did not obtain proper authority to destroy
the confiscated property. Brunner v. N. Central Corr. Inst., Ct. of Cl. No. 2006-08020-
AD, 2007-Ohio-6386.

N.E.2d 196, see also Perdue v. Lebanon Corr. Inst., Ct. of Cl. No. 2007-02971-AD, 2007-Ohio-7188.
       {¶11} Negligence on the part of defendant has been shown in respect to
plaintiff’s claims for loss. Baisden v. Southern Ohio Correctional Facility (1977), 76-
0617-AD.
       {¶12} 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. Evidence has established that some unknown
portion of the destroyed art supplies had been used by plaintiff during his participation in
the recreation program.
       {¶13} 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.
       {¶14} 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.
       {¶15} In a situation where damage assessment for personal property destruction
based on market value is essentially indeterminable, a damage determination may be
based on the standard value of the property to the owner. This determination considers
such factors as value to the owner, original costs, replacement cost, salvage value, and
fair market value at the time of the loss. Cooper v. Feeney (1986), 34 Ohio App. 3d
282, 518 N.E. 2d 46.
       {¶16} Plaintiff suffered damages in the amount of $250.00.
                                  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




BRYAN SPARKS

          Plaintiff

          v.

OHIO DEPT. OF REHABILITATION AND CORRECTION

          Defendant

          Case No. 2011-09454-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 $250.00. Court costs are assessed against defendant.




                                            DANIEL R. BORCHERT
                                            Deputy Clerk

Entry cc:

Bryan Sparks, #463-981                      Gregory C. Trout, Chief Counsel
P.O. Box 57                                 Department of Rehabilitation
Marion, Ohio 43301                          and Correction
                                            770 West Broad Street
                                            Columbus, Ohio 43222
SJM/laa
10/19
Filed 11/2/11
Sent to S.C. reporter 3/30/12
