[Cite as Melton v. Dept. of Rehab. & Corr., 2011-Ohio-6834.]



                                                           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



MELTON,                                                :    Case No. 2010-12206

       Plaintiff,                                      :    Judge Clark B. Weaver Sr.
                                                            Magistrate Matthew C. Rambo
       v.                                              :

DEPT. OF REHAB. & CORR.,                               :

       Defendant.                                      :    MAGISTRATE DECISION


        {¶ 1} Plaintiff brought this action alleging property loss and defamation, and

requesting an immunity determination as to certain employees of defendant.                           The

issues of liability and damages were bifurcated and the case proceeded to trial on the

issue of liability.

        {¶ 2} As an initial matter, the court finds that plaintiff failed to present any

evidence regarding either his defamation claim or his contention that defendant’s

employees are not entitled to civil immunity. Accordingly, judgment is recommended in

favor of defendant as to the defamation claim and it is the determination of this court

that defendant’s employees Ricky Bowman and Roby Ware are entitled to civil immunity

and that the courts of common pleas do not have jurisdiction over any claim against

them based upon the facts alleged in the complaint.

        {¶ 3} At all times relevant, plaintiff was an inmate in the custody and control of

defendant at the Trumbull Correctional Institution (TCI) pursuant to R.C. 5120.16.

Plaintiff alleges that property was stolen from him, including a pair of “Jordan Icon”
Case No. 2010-12206                            -2-                MAGISTRATE DECISION

shoes. Plaintiff alleges that TCI staff recovered the shoes but refused to return them to

him.

       {¶ 4} “When prison authorities obtain possession of an inmate’s property, a

bailment relationship arises between the correctional facility and the inmate. By virtue

of this relationship, [defendant] must exercise ordinary care in handling and storing

appellant’s property.” Triplett v. S. Ohio Corr. Facility, Franklin App. No. 06AP-1296,

2007-Ohio-2526, ¶7. (Internal citations omitted.) However, “[defendant] does not have

the liability of an insurer (i.e., is not liable without fault) with respect to inmate property *

* *.” Id. The mere fact that a theft occurred is not enough to show that the defendant is

liable for the loss of plaintiff’s property.    Warren v. Dept. of Corr. (1987), 36 Ohio

Misc.2d 18. “In order for plaintiff to be compensated for his claimed loss he must show

by a preponderance of the evidence defendant's agents knew or had reason to know

that another person would enter plaintiff's cell during his absence with the intent to steal

property belonging to the prisoner.” Id. To establish that defendant is liable for the loss

of an inmate’s property, “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.” Freeman v. S. Ohio Corr. Facility, Ct. of Cl. No. 2006-06949-AD,

2007-Ohio-1758, ¶13, citing Landon v. Lee Motors, Inc. (1954), 161 Ohio St. 82.
Case No. 2010-12206                          -3-               MAGISTRATE DECISION

       {¶ 5} Plaintiff testified that sometime in June 2010, he was transported from TCI

to appear for a common pleas court proceeding. According to plaintiff, prior to his court

appearance, his mother gave him a pair of Jordan Icon shoes. Plaintiff stated that he

wore the shoes for the court appearance and for his trip back to TCI. Plaintiff testified

that a short time after returning to TCI, another inmate pulled a knife on him and took

the shoes. According to plaintiff, as a result of the incident, he and the other inmate

were sent to segregation and the shoes were confiscated but never returned to him.

       {¶ 6} With regard to other missing property, plaintiff testified that he was in

segregation between June 6 and June 15, 2010. According to plaintiff, while he was in

segregation, his property was inventoried by a corrections officer (CO) and stored in the

TCI property vault. Plaintiff testified that when he was released from segregation on

June 15, 2010, he retrieved his property, and it was all accounted for. (Plaintiff’s Exhibit

4.) On June 17, 2010, plaintiff was transferred to the Mansfield Correctional Institution

(ManCI); his property was inventoried and packed up by a CO and transported to

ManCI separately. According to plaintiff, when his property arrived at ManCI, much of it

was either missing or did not appear on the inventory form.          (Plaintiff’s Exhibit 5.)

However, plaintiff admitted that his cellmate was the party responsible for informing TCI

staff which property in the cell belonged to plaintiff.

       {¶ 7} Corrections Sergeant Ricky Bowman was in charge of the vault where

plaintiff’s property was stored while he was in segregation in June 2010. Bowman
Case No. 2010-12206                          -4-                 MAGISTRATE DECISION

testified that when plaintiff was released from segregation, plaintiff presented himself at

the property vault and inspected his property.        According to Bowman, plaintiff was

satisfied that nothing was missing and both he and plaintiff signed the inventory sheet of

his property. (Plaintiff’s Exhibit 4.) Bowman further testified that much of the property

that was on the June 6, 2010 inventory form was not on the June 17, 2010 inventory

form.   According to Bowman, when plaintiff was transferred plaintiff’s cellmate was

responsible for informing the CO in charge of packing plaintiff’s property which property

in the cell belonged to plaintiff.

        {¶ 8} Roby Ware has been the Warden’s Assistant at TCI for 16 years. With

regard to plaintiff’s shoes, Ware testified that such items would have to be documented

by TCI staff because it is against TCI policy for plaintiff to wear the shoes into the

institution on his return trip from court. Ware stated that the shoes in question were

disposed of as “unclaimed property” because plaintiff could not prove they were his.

Ware testified that she did talk to plaintiff’s mother about the shoes, but that since

neither plaintiff nor his mother could provide a proper sales receipt, Ware did not return

the shoes to plaintiff.

        {¶ 9} Based upon the testimony presented at trial, the court finds that defendant

is not liable for the loss of plaintiff’s property. Specifically, the court finds that inasmuch

as plaintiff did not have proof of ownership of the shoes in question, he was not entitled

to possess them pursuant to defendant’s policy. The court further finds that plaintiff has
Case No. 2010-12206                         -5-                   MAGISTRATE DECISION

failed to establish that defendant’s agents were responsible for his property not being

transferred from TCI to ManCI. Indeed it is more likely that plaintiff’s cellmate at TCI did

not properly identify all of plaintiff’s property to TCI staff.    Accordingly, judgment is

recommended in favor of defendant.

       {¶ 10}   A party may file written objections to the magistrate’s decision within 14

days of the filing of the decision, whether or not the court has adopted the decision

during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files

objections, any other party may also file objections not later than ten days after the first

objections are filed. A party shall not assign as error on appeal the court’s adoption of

any factual finding or legal conclusion, whether or not specifically designated as a

finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely

and specifically objects to that factual finding or legal conclusion within 14 days of the

filing of the decision, as required by Civ.R. 53(D)(3)(b).




                                           _____________________________________
                                           MATTHEW C. RAMBO
                                           Magistrate


cc:


Emily M. Simmons                              Gregory Melton, #570-333
Assistant Attorney General                    P.O. Box 788
150 East Gay Street, 18th Floor               Mansfield, Ohio 44901
Columbus, Ohio 43215-3130
Case No. 2010-12206                  -6-   MAGISTRATE DECISION



Filed November 2, 2011
To S.C. reporter December 30, 2011
