[Cite as James v. Mansfield Correctional Inst., 2010-Ohio-3787.]

                                       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 JAMES

       Plaintiff

       v.

MANSFIELD CORRECTIONAL INSTITUTION

       Defendant

        Case No. 2009-07571-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} Plaintiff, Kenneth James, a former inmate incarcerated at defendant,
Mansfield Correctional Institution (ManCI), filed this action alleging that multiple items of
his personal property were lost or stolen as a proximate cause of negligence on the part
of ManCI staff in handling the property. On March 11, 2008, plaintiff was transferred
from the ManCI general population to a security control unit. Incident to this transfer,
plaintiff’s personal property was inventoried, packed, and delivered into the custody of
ManCI staff. Plaintiff was present during the packing of his property and he submitted a
copy of his “Inmate Property Record” confirming the fact he was present during the
pack-up. Plaintiff related he subsequently discovered multiple items of his personal
property were missing and he presumed the items were lost or stolen while under
defendant’s control. Plaintiff asserted the following property items were lost or stolen
while under defendant’s control: seventeen CDs, nine cassette tapes, one set of JVC
headphones, one Sony walkman, one Quran, one Fasaill Amaal, six Kufis, one pair of
house shoes, one lamp, three cups, three bowls, one CD case, one pouch tobacco, six
soups, eight batteries, one long sleeve t-shirt, two nail clippers, and six emery boards.
Plaintiff did not supply a value for his religious property listing the value of these items
as “irreplaceable.”       Additionally, plaintiff did not list a value for his CD case.                  The
cumulative listed value of property amounts to $491.74.                      In his complaint, plaintiff
requested damages in the amount of $2,500.00 for property loss, and “additional
monies for mental anguish, stress, and irreparable damages.”1 Payment of the filing fee
was waived.
        {¶ 2} The March 11, 2008 “Inmate Property Record” compiled when plaintiff was
transferred to a segregation unit at ManCI lists the following items relevant to this claim:
seventeen CDs, ten cassette tapes, one Sony walkman with ear buds, two religious
books, six religious headgear, two pairs of house shoes, one lamp, three cups, three
bowls, one CD case, eight batteries, one long sleeve t-shirt, six soups, two nail clippers,
and six emery boards. It appears the only item plaintiff listed in his complaint that is not
listed on the March 11, 2008 “Inmate Property Record” is one set of JVC headphones.
Plaintiff also submitted in his complaint a copy of his “Inmate Property Record” compiled
on October 30, 2008 when he was transferred to the Toledo Correctional Institution
(ToCI). None of the alleged missing property is listed on this ToCI “Inmate Property
Record.”
        {¶ 3} Defendant contended plaintiff has not produced sufficient evidence to
establish his property was lost or stolen while under the control of ManCI staff after he
was transferred to a segregation unit on March 11, 2008. Defendant’s position is based
on the findings of the ManCI Inspector Sharon Berry, who investigated plaintiff’s claim.
Berry determined plaintiff first complained about missing property on June 11, 2008
when he filed an “Informal Complaint Resolution” (ICR). In the ICR plaintiff claimed
ManCI personnel left property in his cell when he was transferred to segregation on
March 11, 2008. Plaintiff also claimed the property left in the cell was turned over to
ManCI staff by his cellmate and the items were subsequently, “lost or stolen from R/D
(vault) on or after 3/11/08.” According to second IRC filed June 19, 2008, it is noted


        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.
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.
under the caption “Action Taken” the responding ManCI staff member could not find any
additional property items owned by plaintiff that were stored in the institution vault.
Berry advised that plaintiff’s property was inventoried (record submitted) on June 30,
2008. Of the claimed lost or stolen property items, the following are listed on this June
30, 2008 inventory: one CD holder, t-shirt, three batteries, two religious headgear, one
religious book, and one cassette tape. Berry noted plaintiff left some property at ManCI
to be mailed to an outside address at the time he was transferred to ToCI. However,
the property was not mailed due to the fact plaintiff did not have sufficient funds to pay
for postage and the items were subsequently forwarded to ToCI after March 10, 2009.
Defendant denied liability in this matter based on the contention plaintiff failed to prove
the property claimed was lost or stolen while under the control of ManCI personnel.
       {¶ 4} Plaintiff filed a response insisting all property claimed was lost or stolen
while under the custody and care of ManCI staff. Plaintiff again explained that ManCI
personnel, “who moved his property, outside his presence, left the property in his cell
with his previous cellmate” on March 11, 2008. According to plaintiff, the property left
behind was lost or stolen after being forwarded to the custody of ManCI staff. Plaintiff
provided evidence confirming that none of the property that was forwarded from ManCI
to Toledo in March 2009 contained any “property that is the subject of this action.”
Plaintiff related he, “is entitled to recover for the stated value of each item set forth in the
Complaint, as well as to have this Court establish a reasonable value for the items that
are irreplaceable as set forth in the Complaint and that it is not objectively unreasonable
to award the full amount set forth in the initial Complaint.”
       {¶ 5} Plaintiff submitted a handwritten document from his former cellmate,
Malone #523-321, regarding the March 11, 2008 property pack-up incident. Malone
wrote he transported property owned by plaintiff contained in a plastic bag and placed
the bag in a room at the direction of ManCI personnel.


                                 CONCLUSIONS OF LAW
       {¶ 6} 1)     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,
Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707.
       {¶ 7} 2)   “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, 798 N.E.
2d 1121, ¶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} 3)   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} 4)   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.
       {¶ 10} 5) 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.
       {¶ 11} 6) Plaintiff must produce evidence which affords a reasonable basis for
the conclusion 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.
       {¶ 12} 7) 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 possibilities, to any
essential 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.
       {¶ 13} 8) 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 finds plaintiff’s
assertion and the assertions of plaintiff’s witness credible in regard to the delivery of all
claimed property into the custody of ManCI staff.
      {¶ 14} 9) Negligence on the part of defendant has been shown in respect to the
issue protecting plaintiff’s property after he was transferred to segregation on March 11,
2008. Billups v. Department of Rehabilitation and Correction (2001), 2000-10634-AD.
Plaintiff has offered sufficient proof to establish all property claimed with the exception
of a pair of JVC headphones was lost or stolen while under the control of ManCI staff.
      {¶ 15} 10) The standard measure of damages for personal property loss is market
value. McDonald v. Ohio State Univ. Veterinary Hosp. (1994), 67 Ohio Misc. 2d 40, 644
N.E. 2d 750.
      {¶ 16} 12) In a situation where a damage assessment for personal property
destruction or loss 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 cost, 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.
      {¶ 17} 13) 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.
      {¶ 18} 14) 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.
      {¶ 19} 15) Plaintiff has suffered damages in the amount of $300.00.




                               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
KENNETH JAMES

        Plaintiff

        v.

MANSFIELD CORRECTIONAL INSTITUTION

        Defendant

         Case No. 2009-07571-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 $300.00. Court costs are assessed against defendant.




                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:

Kenneth James, #341-232                           Gregory C. Trout, Chief Counsel
P.O. Box 4501                                     Department of Rehabilitation
Lima, Ohio 45802                                  and Correction
                                                  770 West Broad Street
                                                  Columbus, Ohio 43222
RDK/laa
3/17
Filed 4/8/10
Sent to S.C. reporter 8/13/10
