[Cite as Alderson v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-2889.]

                                      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




LEE A. ALDERSON

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant

Case No. 2010-09451-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                         FINDINGS OF FACT
        {¶ 1} 1)       On December 7, 2009, employees of defendant, Department of
Rehabilitation and Correction (DRC), conducted a shakedown search at the Pickaway
Correctional Institution (PCI), a DRC facility.              Plaintiff, Lee A. Alderson, an inmate
incarcerated at PCI, stated that several items of his personal property were stolen after
DRC staff failed to ensure his property was secure at the conclusion of the shakedown
search. Specifically, plaintiff asserted that a lock, one bag of coffee, eight bags of
popcorn, twelve beef soups, three chili with beans, one sausage, one bagel, one
cappuccino, two cupcakes, eleven beef & cheese stix, three beef stix, one creme
cookie, one bottle cheddar cheese, two espresso coffees, and several CD’s were
missing from his property.
        {¶ 2} 2)       Plaintiff further alleged defendant failed to follow its own internal
policies and procedures with regard to the grievances he has filed.                    Consequently,
plaintiff filed this complaint seeking to recover $204.29, the stated replacement cost for
his missing property.           The $25.00 filing fee was paid and plaintiff requested
reimbursement of that cost along with his damage claim.
       {¶ 3} 3)    Defendant denied liability and contended that plaintiff failed to offer
any evidence to prove that DRC personnel acted negligently during the December 7,
2009 shakedown search at PCI.         Defendant maintained plaintiff’s property was not
confiscated as contraband and suggested that plaintiff’s missing items may “have been
misplaced, stolen, traded, or gambled away” by plaintiff. Defendant further asserted
plaintiff did not produce any evidence to establish any of his property items were lost or
stolen while under the control of PCI staff.
       {¶ 4} 4)    Plaintiff filed a response arguing that he was not allowed to remain in
his cell during the shakedown and that therefore, DRC staff assumed responsibility for
his property at the time he was ordered to leave the area. Secondly, plaintiff contended
that defendant failed to comply with the administrative rules for shakedown searches
and grievance procedures.
                                CONCLUSIONS OF LAW
       {¶ 5} 1)    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.
       {¶ 6} 2)    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.
       {¶ 7} 3)    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.
       {¶ 8} 4)    Plaintiff must produce evidence which affords a reasonable basis for
the conclusion that 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.
       {¶ 9} 5)    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 issues, as to any 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.
       {¶ 10} 6)    Plaintiff cannot recover for property loss when he fails to produce
sufficient evidence to establish defendant actually assumed control over the property.
Whiteside v. Orient Correctional Inst., Ct. of Cl. No. 2002-05751, 2005-Ohio-4455 obj.
overruled, 2005-Ohio-5068.
       {¶ 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. In the instant action, the
trier of fact finds that the statements of plaintiff are not particularly persuasive.
       {¶ 12} 8)    Plaintiff’s failure to prove delivery of the above listed property to
defendant constitutes a failure to show imposition of a legal bailment duty on the part of
defendant in respect to lost property.        Prunty v. Department of Rehabilitation and
Correction (1987), 86-02821-AD.
       {¶ 13} 9)    In addition, prison regulations, including those contained in the Ohio
Administrative Code, "are primarily designed to guide correctional officials in prison
administration rather than to confer rights on inmates." State ex rel. Larkins v.
Wilkinson, 79 Ohio St. 3d 477, 479, 1997-Ohio-139, 683 N.E. 2d 1139, citing Sandin v.
Conner (1995), 515 U.S. 472, 481-482, 115 S. Ct. 2293, 132 L. Ed. 2d 418.
Additionally, this court has held that "even if defendant had violated the Ohio
Administrative Code, no cause of action would exist in this court. A breach of internal
regulations in itself does not constitute negligence." Williams v. Ohio Dept. of Rehab.
and Corr. (1993), 67 Ohio Misc. 2d 1, 3, 643 N.E. 2d 1182. Accordingly, to the extent
that plaintiff alleges that DRC somehow violated internal prison regulations and the Ohio
Administrative Code, he fails to state a claim for relief. See Sharp v. Dep't of Rehab. &
Corr., Ct. of Cl. No. 2008-02410-AD, 2008-Ohio-7064, ¶5.
       {¶ 14} 10) Plaintiff has failed to prove, by a preponderance of the evidence, that
he sustained any loss as a result of any negligence on the part of 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




LEE A. ALDERSON

          Plaintiff

          v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

          Defendant

Case No. 2010-09451-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:

Lee Alderson, #558-101                             Gregory C. Trout, Chief Counsel
P.O. Box 209                                       Department of Rehabilitation
11781 St. Rt. 762                                  and Correction
Orient, Ohio 43146                                 770 West Broad Street
                                                   Columbus, Ohio 43222
SJM/laa
3/18
Filed 3/25/11
Sent to S.C. reporter 6/9/11
