[Cite as Williams v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-3634.]



                                      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




ANDY WILLIAMS

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant

        Case No. 2009-06681-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                         FINDINGS OF FACT
        {¶ 1} 1)         On December 8, 2008, plaintiff, Andy Williams, an inmate
incarcerated at defendant’s Pickaway Correctional Institution (PCI), was transferred
from the PCI general population to a segregation unit.
        {¶ 2} 2)         Plaintiff’s personal property was inventoried, packed, and delivered
into the custody of PCI staff incident to his transfer.               Plaintiff recalled he regained
possession of his property on January 14, 2009, and discovered several items were
missing.
        {¶ 3} 3)         Plaintiff claimed the following items were missing:                    eighteen
compact discs (CDs), eighteen cassette tapes, one clock, a set of Sony headphones,
one Sony wrap around, and eighty-nine photographs. Plaintiff asserted his property
was lost or destroyed as a proximate cause of negligence on the part of PCI personnel
and he has consequently filed this complaint seeking damages in the amount of
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$946.95, the estimated replacement value of the property. The filing fee was paid and
plaintiff requested reimbursement of that cost ($25.00) along with his damage claim.
       {¶ 4} 4)      Plaintiff submitted a copy of a “Disposition of Grievance” he filed
with the PCI Inspector in connection with his claim about property loss. The Inspector
determined “[i]t is likely they (plaintiff’s property items) were destroyed in the process of
‘cleaning up’ the contraband cage.”
       {¶ 5} 5)      Defendant explained that when plaintiff’s property was packed on
December 8, 2008, it was discovered plaintiff had eighteen CDs and nineteen cassette
tapes; amounts “in excess of the permitted possession limits” of fifteen cassette tapes
and ten CDs.      Defendant submitted a copy of plaintiff’s “Inmate Property Record”
compiled on December 8, 2008 when his property was packed on December 8, 2008.
Defendant pointed out the PCI officer who packed plaintiff’s property wrote the notation
“conduct report” beside the listed spaces for “cassette tapes” and “compacts discs” on
plaintiff’s December 8, 2008 “Inmate Property Record.” Defendant related this notation
by the packing officer “indicates his intention to issue a conduct report for the excess
property.” According to defendant, the CDs and cassette tapes that plaintiff possessed
on December 8, 2008 were separated from the remainder of the packed property and
were “to be handled as contraband.” Apparently, all CDs and cassette tapes were lost
while under the control of PCI staff. Defendant, in turn, has admitted liability for the loss
of fifteen cassette tapes and nine CDs. Defendant denied liability for any cassette tapes
and CDs that were over the possession limit contending that all property in excess of
the limit was contraband and plaintiff has no right to assert a claim for contraband he
had no right to possess. Defendant explained that the admission of liability in respect to
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Case No. 2006-03532-AD                      -3-            MEMORANDUM DECISION



the CDs “plaintiff was entitled to have.”
       {¶ 6} 6)      Defendant disputed plaintiff’s damage claim for the loss of the CDs
and cassette tapes.     In his complaint, plaintiff claimed damages in the amount of
$163.36 for the loss of eighteen cassette tapes and $298.74 for the loss of eighteen
CDs. Defendant recorded plaintiff had documented purchases of nine CDs totaling
$126.87 between the years 2004 and 2006. Defendant related “[t]he remaining CDs
listed by the plaintiff using the purchase prices estimated by plaintiff, total $147.35.”
Defendant advised that all CDs in plaintiff’s possession on December 8, 2008 were
used and therefore, considered depreciable property.      Defendant suggested plaintiff
should be compensated for the loss of the ten most expensive CDs as listed by plaintiff
at a “50% depreciation rate” of $81.67.       Defendant observed the depreciation rate
suggested represents the fair market value of ten CDs plaintiff was allowed to possess.
Defendant also asserted the lost cassette tapes constituted depreciable property and
any damage recovery should reflect a 50% depreciation rate. Defendant suggested the
fair market value for fifteen cassette tapes should amount to $68.7.       Furthermore,
defendant admitted liability for the loss of plaintiff’s clock and headphones totaling
$23.94. Defendant acknowledged plaintiff suffered damages totaling $174.32.
Case No. 2006-03532-AD                   -4-               MEMORANDUM DECISION



      {¶ 7} 7)      Defendant denied any liability for the loss of any photographs
claimed by plaintiff. Of the eighty-nine alleged missing photographs claimed by plaintiff,
he advised that “30 of them were nude photos of my wife.” Defendant argued any
photographs depicting nudity “would be contraband.”              Additionally, defendant
maintained plaintiff “has not demonstrated what photos he may have had or the quantity
of such photos.” Defendant asserted the value of any photographs should not exceed
$10.00, “the cost of processing such photos.” Plaintiff’s “Inmate Property Record” dated
December 8, 2008 lists a photo album and assorted photos among the property packed
by defendant.
      {¶ 8} 8)      Plaintiff filed a response insisting he is entitled to all damages
claimed.   Plaintiff referenced the “Disposition of Grievance” he submitted with his
complaint wherein the PCI Inspector noted that Officer Cooper, a PCI employee who
assisted in packing plaintiff’s property on December 8, 2008, was interviewed and
apparently stated he “thought” he observed PCI employee, Officer Lauritzen, “putting
CDs, tapes and a bunch of pictures” among packed property. According to findings in
the “Disposition of Grievance,” all packed property was taken to the PCI main property
vault by Officer Cooper.      Also, according to the findings in the “Disposition of
Grievance,” another PCI employee, Officer Nicholas, was interviewed and he recalled
taking some of plaintiff’s property to the PCI contraband cage and saw “many pictures,
but not CDs or tapes” among the items he transported. Plaintiff maintained he in fact
did purchase all nineteen cassette tapes and all eighteen CDs he claimed. Plaintiff also
maintained he was permitted to retain all of the items by defendant. Plaintiff asserted
he has “receipts for all [p]urchases,” but he did not supply these receipts. Plaintiff
Case No. 2006-03532-AD                    -5-                MEMORANDUM DECISION




Case No. 2006-03532-AD                    -5-                MEMORANDUM DECISION



recalled he purchased a total of twenty-three CDs on four occasions between February
4, 2005 and December 21, 2006 during times he was incarcerated at Ross Correctional
Institution and Lebanon Correctional Institution.     Plaintiff argued that if he was not
allowed to retain CDs and cassette tapes in excess of the defendant’s possession limit
restrictions, he should have been permitted to mail the excess amount to his outside
residence rather than have the items subject to loss or destruction. Additionally, plaintiff
pointed out defendant failed to address the issue of his missing ear buds that he
claimed in his complaint and valued at $15.97. Plaintiff contended he is entitled to
recover the replacement value of his ear buds as well as the headphones and clock
defendant acknowledged were lost while under the control of PCI staff. Furthermore,
plaintiff contended he is entitled to recover $445.00 for the loss of eighty-nine
photographs, which included but were not limited to, nude photographs of his wife.
Plaintiff explained he was permitted to retain photographs depicting nudity and such
photographs were not considered contraband by defendant’s internal regulations.
Plaintiff observed that the missing photographs that he valued at $5.00 each represents
“a fair price.” Plaintiff stated “actual cost of restoration would be at right around $29.00
per photo.” Plaintiff did not submit any evidence to establish his photographs were
Case No. 2006-03532-AD                     -6-                MEMORANDUM DECISION



worth $5.00 per photograph or $29.00 per photograph.
                                    CONCLUSIONS OF LAW
       {¶ 9} 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.
       {¶ 10}     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.
       {¶ 11}     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.
       {¶ 12}     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.
       {¶ 13}     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.
       {¶ 14}     6)Plaintiff must produce evidence which affords a reasonable basis for
Case No. 2006-03532-AD                   -7-                MEMORANDUM DECISION




Case No. 2006-03532-AD                   -7-                MEMORANDUM DECISION



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.
       {¶ 15}    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.
       {¶ 16}    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
assertions credible that he purchased all cassette tapes and CDs. The court also finds
plaintiff’s assertions persuasive concerning the fact he had all photographs claimed in
his possession on December 8, 2008.
       {¶ 17}    9)It has been previously held, an inmate plaintiff may recover the value
Case No. 2006-03532-AD                   -8-               MEMORANDUM DECISION



of confiscated contraband property destroyed by agents of defendant when those
agents acted without authority or right to carry out the property destruction. Berg v.
Belmont Correctional Institution (1998), 97-09261-AD; Wooden v. Ohio Dept. of Rehab.
& Corr., Ct. of Cl. No. 2004-01958-AD, 2004-Ohio-4820; Hemsley v. N. Cent.
Correctional Inst., Ct. of Cl. NO. 2005-03946-AD, 2005-Ohio-4613; Mayfield v. Richland
Correctional Inst., Ct. of Cl. No. 2005-07976-AD, 2006-Ohio-358.
      {¶ 18}     10)Negligence on the part of defendant has been shown in respect to
the issue protecting plaintiff’s property after he was transferred. Billups v. Department
of Rehabilitation and Correction (2001), 2000-10634-AD, jud.
      {¶ 19}     12)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.
      {¶ 20}     13)In a situation where a damage assessment for personal property
destruction 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.
      {¶ 21}     14)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.
      {¶ 22}     15)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.
Case No. 2006-03532-AD                 -9-              MEMORANDUM DECISION




Case No. 2006-03532-AD                 -9-              MEMORANDUM DECISION



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.
      {¶ 23}    16)Plaintiff has suffered damages in the amount of $380.00, 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 990.
Case No. 2006-03532-AD                 - 10 -             MEMORANDUM DECISION




                              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




ANDY WILLIAMS

      Plaintiff

      v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

      Defendant

      Case No. 2009-06681-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
Case No. 2006-03532-AD                - 11 -            MEMORANDUM DECISION




Case No. 2006-03532-AD                - 11 -            MEMORANDUM DECISION



of plaintiff in the amount of $405.00, which includes the filing fee. Court costs are
assessed against defendant.




                                       DANIEL R. BORCHERT
                                       Deputy Clerk

Entry cc:

Andy Williams, #271-740                Gregory C. Trout, Chief Counsel
P.O. Box 209                           Department of Rehabilitation
Orient, Ohio 43146                     and Correction
                                       770 West Broad Street
                                       Columbus, Ohio 43222
RDK/laa
3/9
Filed 3/25/10
Sent to S.C. reporter 8/6/10
