[Cite as Gross v. S. Ohio Corr. Facility, 2011-Ohio-3850.]



                                       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




TONY R. GROSS

        Plaintiff

        V.

SOUTHERN OHIO CORRECTIONAL FACILITY, et al.

        Defendants


        Case No. 2010-08675-AD


Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                           FINDINGS OF FACT
        {¶ 1} On or about May 20, 2009, plaintiff, Tony R. Gross, an inmate formerly
incarcerated at defendant, Southern Ohio Correctional Facility ("SOCF"), was
transferred from the SOCF general population to a segregation unit. Plaintiff's personal
property was packed and delivered into the custody of SOCF staff incident to this
transfer.
        {¶ 2} On or about July 22, 2009, plaintiff was released from segregation and his
property was again inventoried prior to his transfer from SOCF to the Toledo
Correctional Institution (ToCI). Plaintiff asserted that after he regained possession of
his property the following items were missing: a Timex watch, a necklace, and three art
boards. In addition, plaintiff alleges his radio and dictionary were damaged (broken
volume control knob, torn cover). Plaintiff submitted a copy of the pack-up inventory
compiled on May 20, 2009. Items listed relevant to this claim are a watch, a necklace,
three drawing boards, and a radio. Plaintiff maintained all of the listed property was in
good working order before it was packed and delivered into the custody of SOCF
personnel. Plaintiff contended his radio and dictionary were damaged at some time
during the transport to ToCI. Plaintiff claimed additional property items (a chord finder,
a stamp magnifier, an Allman Brothers CD, and a TV antenna) were confiscated by
ToCI staff as possible contraband and were not returned to him. Plaintiff submitted a
copy of an inventory compiled by SOCF personnel on July 22, 2009. Items relevant to
this claim listed on the inventory are a radio, a CD, and a TV antenna.             Plaintiff
submitted a copy of an inventory completed by ToCI personnel on July 23, 2009. The
following items claimed as missing are listed on this inventory: radio, CD, magnifier,
chord finder, and TV antenna.
       {¶ 3} Plaintiff asserted ToCI staff confiscated his guitar chord finder and placed
it in storage pending completion of an internal policy regarding possession of musical
property by inmates in protective custody. According to plaintiff, the chord finder was
subsequently lost or stolen while in the custody of ToCI staff.
       {¶ 4} Finally, plaintiff claimed ToCI staff confiscated a stamp magnifier, an
Allman Brothers CD, and a TV antenna as contraband, and that such items were not
returned to him. Consequently, plaintiff filed this complaint seeking to recover $ 204.00,
the total replacement cost of the property claimed. The filing fee was paid.
       {¶ 5} Plaintiff submitted additional information documenting his decision to give
the broken radio to another inmate rather than to discard it in the trash. According to
plaintiff, the radio was subsequently confiscated from the other inmate and designated
as contraband. Plaintiff sought to have the damaged radio returned to him, to no avail.
       {¶ 6} Defendant denied any liability and asserted plaintiff’s copy of the May 20,
2010 inventory is illegible. In addition, defendant was unable to locate its copy of the
same inventory. Defendant maintained plaintiff signed both the July 22, 2009 inventory
compiled at SOCF acknowledging the items listed constituted a complete and accurate
inventory of all his property, and the subsequent receipt prepared by ToCI staff
indicating that plaintiff received all of the items transferred from SOCF listed on the July
22, 2009 inventory.     Defendant contended plaintiff failed to prove the radio was
damaged during transport or while under defendant’s control. Finally, defendant stated
plaintiff’s chord finder, Allman Brothers CD, magnifier, and TV antenna were returned to
him.
        {¶ 7} Plaintiff filed a response wherein he acknowledged receipt of the chord
finder and the stamp magnifier in November 2010. On November 12, 2010, defendant
filed a motion to supplement the record wherein defendant explained that a bag
containing plaintiff’s chord finder, stamp magnifier and a clip-on lamp had apparently
fallen behind a cabinet and that the recently located property had been returned to
plaintiff.   In addition, an institutional inspector’s report states plaintiff’s antenna and
Allman Brothers CD were confiscated as contraband because the antenna was altered
and plaintiff failed to provide a receipt proving ownership of the CD.
                                     CONCLUSIONS OF LAW
        {¶ 8} 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.
        {¶ 9} 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.
        {¶ 10} 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, 788 N.E. 2d 1088, ¶8 citing Menifee v. Ohio
Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707.
        {¶ 11}     “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; and Mussivand v.
David (1989), 45 Ohio St. 3d 314, 318, 544 N.E. 2d 265.
        {¶ 12}     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.
        {¶ 13}     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 particular persuasive in regard to the fact he was the rightful owner
of all of the confiscated property.
       {¶ 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.       Defendant cannot be held liable for contraband
property that plaintiff has no right to possess.           Beaverson v. Department of
Rehabilitation and Correction (1988), 87-02540-AD; Radford v. Department of
Rehabilitation and Correction (1985), 84-09071.
       {¶ 15}     An inmate maintains no right of ownership in property which is
impermissibly altered and therefore, has no right to recovery when the altered property
is lost or destroyed. Watley v. Ohio Department of Rehabilitation and Correction, Ct. of
Cl. No. 2005-05183-AD, jud, 2005-Ohio-4320; Watson v. Ohio State Penitentiary, Ct. of
Cl. No. 2007-05229-AD, 2008-Ohio-2848.
       {¶ 16}     Evidence has shown some confiscated property was altered and
consequently was considered impermissible. No recovery can be had for the loss or
destruction of impermissible altered property. See Kemp v. Ohio State Penitentiary, Ct.
of Cl. No. 2006-02587-AD, 2006-Ohio-7247.
       {¶ 17}     Plaintiff has failed to show any causal connection between any
damage to the radio or the dictionary and any breach of 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. In addition, plaintiff, by giving
the radio to another inmate, effectively relinquished all ownership rights in the property.
See Johnson v. Ohio Reformatory for Women, Ct. of Cl. No. 2004-01087-AD, 2004-
Ohio-4818.
       {¶ 18}     Negligence on the part of defendant has been shown in respect to a
portion of the property claimed. Baisden v. Southern Ohio Correctional Facility (1977),
76-0617-AD. Negligence on the part of defendant has been shown in respect to the
issue of protecting plaintiff’s property after he was transferred to segregation on May 20,
2009. Billups v. Department of Rehabilitation and Correction (2001), 2000-10634-AD.
Plaintiff has offered sufficient proof to establish defendant is liable for the loss of a
watch, necklace, and three art boards.
      {¶ 19}     The assessment of damages is a matter within the province of the trier
of fact. Litchfield v. Morris (1985), 25 Ohio App. 3d 42, 25 OBR 115, 495 N.E. 2d 462.
      {¶ 20}     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.
      {¶ 21}     Defendant is liable to plaintiff for property loss in the amount of $45.00,
the fair market value of the watch, necklace, and art boards, plus the $25.00 filing fee
which may be reimbursed as compensable costs pursuant to R.C. 2335.19. See Bailey
v. Ohio Department of Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19, 587
N.E. 2d.
                              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




TONY R. GROSS

      Plaintiff

      v.

SOUTHERN OHIO CORRECTIONAL FACILITY, et al.

      Defendants

      Case No. 2010-08675-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 $70.00, which includes the filing fee.       Court costs are
assessed against defendant.




                                        DANIEL R. BORCHERT
                                        Deputy Clerk

Entry cc:

Tony R. Gross, #A336-748                Gregory C. Trout, Chief Counsel
P.O. Box 80033                          Department of Rehabilitation
2001 E. Central Avenue                  and Correction
Toledo, Ohio 43608                      770 West Broad Street
                               Columbus, Ohio 43222
SJM/laa
3/30
Filed 4/21/11
Sent to S.C. reporter 8/5/11
