[Cite as Collier v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-6656.]

                                       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




ANDRE COLLIER

        Plaintiff

        v.

OHIO DEPT. OF REHAB. AND CORRECTIONS

        Defendant

        Case No. 2010-03151-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)         Plaintiff, Andre Collier, an inmate formerly incarcerated at
defendant’s Marion Correctional Institution (MCI), filed this action against defendant,
Department of Rehabilitation and Correction, alleging several items of his personal
property were lost while under the custody and care of MCI staff at sometime from May
15, 2008 to August 26, 2008.              Plaintiff explained he was transferred from the MCI
general population to a segregation unit on May 15, 2008, and his personal property
was inventoried, packed, and delivered into the control of MCI staff incident to this
transfer. Apparently, plaintiff’s property remained in the custody of MCI personnel until
August 26, 2008 when he was transferred to defendant’s Mansfield Correctional
Institution (ManCI). Plaintiff advised he received his property at ManCI on August 27,
2008 and discovered the following items were missing: four batteries, spaghetti sauce,
seven fish steaks, twenty Ramen soup packets, one cable cord, one t.v. splitter, six
salmon, two rice packs, four nutty bars, two peanut butter, two bowls, two cups, five
bags of nachos, two advanced lotions, five bags of popcorn, one salsa, one AVI vending
debit card, and one copier card.         Plaintiff noted the MCI institutional inspector
confiscated the debit card and copier card and did not return these items to him.
Plaintiff further noted MCI employee Officer Bachtell confiscated the cable cord and t.v.
splitter and did not return these items. Plaintiff filed this complaint contending defendant
should bear liability for all the property items claimed that were either lost or
confiscated. Plaintiff seeks damages in the amount of $88.89, the stated replacement
cost of the items claimed.      The $25.00 filing fee was paid and plaintiff requested
reimbursement of that cost along with his damage claim.
       {¶ 2} 2)      Plaintiff submitted a copy of his “Inmate Property Record-
Disposition and Receipt” (inventory) compiled on May 15, 2008 when he was
transferred to a segregation unit at MCI. Property items listed on this inventory relevant
to this claim include: four batteries, one spaghetti sauce, eighteen Ramen soup packs,
six fish packages, three rice packages, four nutty bars, one peanut butter, three bowls,
and two cups. Plaintiff submitted a copy of an inventory dated August 27, 2008 when
he was transferred to ManCI. Property relevant to this claim listed on this August 27,
2008 inventory is one bowl. Plaintiff submitted copies of prior inventories indicating he
possessed a t.v. splitter and t.v. cable. Plaintiff submitted copies of six receipts from the
MCI commissary dated February 6, 2008, April 16, 2008, April 22, 2008, April 29, 2008,
May 6, 2008, and May 14, 2008, reflecting particular commissary purchases he made
on those dates. The February 6, 2008 receipt shows plaintiff purchased four batteries
on that date. The May 6, 2008 receipt shows plaintiff purchased a copier card and an
AVI vending card with a $25.00 balance. Furthermore, the May 6, 2008 receipt and the
May 14, 2008 receipt indicate plaintiff purchased two bottles of advanced lotion, two jars
of peanut butter, one jar of spaghetti sauce, five bags of popcorn, six packs of salmon,
five pouches of rice, five bags of nacho chips, seven fish steaks, and twenty-six packs
of Ramen noodles on those two dates. The submitted April 29, 2008 receipt reflects
plaintiff purchased a bottle of salsa on that date as well as fish steaks, popcorn, and
nacho chips. The other two April 2008 receipts reflect a purchase pattern of items
including peanut butter, salsa, nutty bars, popcorn, nacho chips, Ramen noodles,
Advanced lotion, and fish steaks.
       {¶ 3} 3)      Defendant admitted liability in the amount of $26.95, for the loss of
the following items: twenty Ramen noodle packs, two packages of rice, one jar of
peanut butter, six cans of salmon, two bottles of location, and one container of spaghetti
sauce. Defendant specifically denied liability for the loss of additional items including:
four batteries, one cable cord, one t.v. splitter, one jar of peanut butter, four nutty bars,
two bowls, two cups, five bags of nacho chips, five bags of popcorn, one jar of salsa,
seven fish steaks, one vending card with a $16.75 balance, and one copier card. In
addressing the issue of the vending card and copier card, defendant explained: “[w]hen
an offender leaves a prison the cards are not transferable to another prison’s vending
and copier machines.” Due to the fact plaintiff was assigned to a segregation unit at
MCI from May 15, 2008 until he was transferred to ManCI in August 2008, he was
prohibited by internal policy from using the MCI issued cards.         Defendant asserted
plaintiff relinquished his right of ownership in the vending card and copier card when he
was transferred to segregation for violating internal rules.
       {¶ 4} 4)      Plaintiff filed a response suggesting, “officers who secured and
packed up property on 5-15-2008 could have negligently allowed someone to steal
plaintiff’s property” while that property was stored in the MCI vault. Plaintiff asserted he
offered proof in his complaint that he owned all the property claimed at the time he was
transferred to segregation on May 14, 2008. Plaintiff argued that he should receive a
credit on his inmate account for the balance amount remaining on the vending card and
the entire amount of the unused copier card. Plaintiff asserted the balances on these
cards are transferable from one institution to another. Plaintiff related he possessed all
property claimed in his complaint including items listed and not listed on his May 15,
2008 inventory.
                                CONCLUSIONS OF LAW
       {¶ 5} 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.
       {¶ 6} 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,¶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.
      {¶ 7} 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.
      {¶ 8} 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.
      {¶ 9} 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.
      {¶ 10} 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.
      {¶ 11} 7)     Plaintiff’s failure to prove delivery of 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.
      {¶ 12} 8)     Plaintiff cannot recover for property loss when he fails to produce
sufficient evidence to establish that defendant actually assumed control over the
property claimed. Whiteside v. Orient Correctional Inst., Ct. of Cl. No. 2002-05751,
2005-Ohio-4455 obj. overruled, 2005-Ohio-5068. In the instant claim, plaintiff has failed
to prove MCI staff ever assumed control over one jar of salsa, two Ramen noodle
packages, a cable cord, a splitter, seven fish steaks, one jar of peanut butter, five bags
of nacho chips, one lotion, and five bags of popcorn.
      {¶ 13} 9)     Plaintiff has failed to prove, by a preponderance of the evidence, that
the above listed property was lost or stolen as a proximate result of any negligent
conduct attributable to defendant.       Fitzgerald v. Department of Rehabilitation and
Correction (1998), 97-10146-AD.
      {¶ 14} 10) Plaintiff has no right to pursue a claim for 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 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} 11) An inmate plaintiff is barred from pursuing a claim for the loss of use
of restricted property when such property is declared impermissible pursuant to
departmental policy. Zerla v. Dept. of Rehab. and Corr. (2001), 2000-09849-AD. The
vending card and copier card plaintiff possessed became impermissible property when
plaintiff was assigned to a segregation unit for disciplinary reasons.       Consequently,
plaintiff may not maintain an action for the loss of the value of these items. Plaintiff
relinquished ownership rights in the cards and essentially abandoned the property.
          {¶ 16} 12) 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
15, 2008. 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
four batteries, one jar of spaghetti sauce, eighteen Ramen noodle packs, six salmon,
two packs of rice, four nutty bars, one jar of peanut butter, two bowls, two cups, and one
lotion.
          {¶ 17} 13) 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.
          {¶ 18} 14) 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.
          {¶ 19} 15) 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.
          {¶ 20} 16) 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.
       {¶ 21} 17) Plaintiff has suffered damages in the amount of $35.25, plus the
$25.00 filing fee.




                               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




ANDRE COLLIER

      Plaintiff

      v.

OHIO DEPT. OF REHAB. AND CORRECTIONS

      Defendant

       Case No. 2010-03151-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 $60.25, which includes the filing fee.        Court costs are
assessed against defendant.
                                DANIEL R. BORCHERT
                                Deputy Clerk

Entry cc:

Andre Collier, #233-115         Gregory C. Trout, Chief Counsel
P.O. Box 69                     Department of Rehabilitation
London, Ohio 43140              and Correction
                                770 West Broad Street
                                Columbus, Ohio 43222
RDK/laa
9/23
Filed 11/2/10
Sent to S.C. reporter 2/11/11
