[Cite as Bryson v. N. Cent. Corr. Inst., 2011-Ohio-7054.]



                                       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




KENNETH BRYSON

        Plaintiff

        v.

NORTH CENTRAL CORRECTIONAL INSTITUTION

        Defendant

        Case No. 2011-04312-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                           FINDINGS OF FACT
        {¶1}     Plaintiff, Kenneth Bryson, an inmate formerly incarcerated at defendant,
North Central Correctional Institution (NCCI), filed this action alleging that several items
of his personal property were lost or stolen on four separate occasions.               The first
incident occurred on September 3, 2010, after plaintiff left his bunk area and the
following items were stolen: one Sony CD player ($74.89), one Pac-man video game
($30.50), one RF Modulator ($17.12), one pair Nike tennis shoes ($40.00), one pair of
sweatpants ($9.10), and one sweatshirt ($9.10). Plaintiff recalled the second incident
occurred on September 7, 2010, when plaintiff’s television remote ($10.80), beard
trimmer ($23.56), and padlock ($4.92), were stolen by unidentified inmates. According
to the allegations in the complaint, the third incident took place on September 14, 2010,
when plaintiff’s television, headphone accessory kit, television signal splitter, coaxial
cable, and padlock were stolen from his bunk area. Then according to plaintiff, on
October 8, 2010, plaintiff’s Koss headphones ($18.73), were stolen, as well.
        {¶2}    Plaintiff requested damage recovery in the amount of $476.45, the stated
total value of the alleged missing property, plus $100.00 “in costs associated with
bringing this action.”1 The filing fee was paid.
        {¶3}    Plaintiff submitted a copy of his notification of grievance and the resulting
disposition of that grievance, as well as the decision on plaintiff’s appeal to the chief
inspector.     Based upon a review of those documents, the court notes that defendant
denied plaintiff’s grievance inasmuch as plaintiff failed to show that defendant took
possession of or acted negligently in protecting plaintiff’s property, defendant supplied
plaintiff with a lockable locker box in which to secure his property, and defendant’s
employees conducted a reasonable search for plaintiff’s stolen property after each theft
report was received.
        {¶4}    Defendant denied liability in this matter contending that plaintiff failed to
offer any evidence to establish that any of his property was lost or stolen as a result of
any breach of a duty of care owed on the part of NCCI personnel in regard to inmate
property protection. Defendant asserted both that there was no evidence that NCCI
staff removed or permitted the removal of plaintiff’s property from his bunk area and that
a search was conducted in reference to each incident. Defendant referenced a report
prepared by the NCCI institutional inspector; however, a copy of the inspector’s report
was not filed with the investigation report.
        {¶5}    Plaintiff filed a response reiterating the allegations of his complaint and
asserting that the corrections officers were negligent for failing to protect plaintiff’s
property from theft attempts, for putting the wrong date on one of plaintiff’s theft/loss
reports, and for failing to review camera footage in an effort to identify the offending
inmate or inmates.
                                       CONCLUSIONS OF LAW
        {¶6}    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,

        1
            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 N.E.2d 196.
Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707.
      {¶7}    “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} 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} 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.
      {¶10}      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.
      {¶11}      The fact defendant supplied plaintiff with a locker box to secure
valuables constitutes prima facie evidence of defendant discharging its duty of
reasonable care. Watson v. Department of Rehabilitation and Correction (1987), 86-
02635-AD.
      {¶12}      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}      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.
      {¶14}      Plaintiff has failed to show an causal connection between the loss of
his property listed and any breach of a duty owed by defendant in regard to protecting
inmate property. Druckenmiller v. Mansfield Correctional Inst. (1998), 97-11819-AD;
Melson v. Ohio Department of Rehabilitation and Correction (2003), Ct. of Cl. No. 2003-
04236-AD, 2003-Ohio-3615.
      {¶15}     Plaintiff has failed to prove, by a preponderance of the evidence, any
of his property was stolen or lost 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




KENNETH BRYSON

        Plaintiff

        v.

NORTH CENTRAL CORRECTIONAL INSTITUTION

        Defendant

        Case No. 2011-04312-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:

Kenneth Bryson, #626-261                         Gregory C. Trout, Chief Counsel
P.O. Box 540                                     Department of Rehabilitation
St. Clairsville, Ohio 43950                      and Correction
                                                 770 West Broad Street
                                                 Columbus, Ohio 43222
SJM/laa
10/14
Filed 11/2/11
Sent to S.C. reporter 3/30/12
