[Cite as Trawick v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-6969.]



                                      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
MARQUET TRAWICK

       Plaintiff

       v.

OHIO DEPT. OF REHABILITATION AND CORRECTION

       Defendant

Case No. 2011-09098-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                         FINDINGS OF FACT
        {¶1}    Plaintiff, Marquet Trawick, an inmate formerly incarcerated at defendant,
Marion Correctional Institution (MCI), filed this action alleging that several items of his
personal property were lost or stolen on two separate occasions. Plaintiff claimed that
he “turned in one laundry bag in with one pair of green sweat pants” on January 2,
2011, and that the laundry came back on January 3, 2011, without the green sweat
pants. As for the second incident, plaintiff recalled that on or about January 27, 2011,
he turned in “2 of the 3 changes of whites allotted in segregation.” According to plaintiff,
Corrections Officer (CO) Barker failed to properly document the laundry items were
received in the laundry.          Plaintiff claims that “[o]n or about Feb. 09, 2011 Lt. Lilly
confirmed that 2 changes of whites, towel, and wash rag were missing and allowed me
to retrieve appropriate wearing appearal [sic] from locker box.”
        {¶2}    In his complaint, plaintiff listed the following items as missing: one pair of
green sweat pants, two pair of white Hanes boxers, two white t-shirts, two pair of white
socks, one white bath towel, and one white wash cloth.               Plaintiff requested damage
recovery in the amount of $47.23, the stated total value of the alleged missing property.
Payment of the filing fee was waived.
        {¶3}   Plaintiff submitted a copy of the disposition of grievance form dated March
1, 2011, which states that plaintiff’s allegation of theft of a pair of green sweat pants was
investigated. According to the records kept by the laundry department, three dorm
“turned in 41 bags and 41 bags were returned to the dorm.” Thus defendant asserted
plaintiff failed to prove negligence on the part of MCI. The chief inspector concluded
that plaintiff failed to prove that he owned green sweat pants, that he placed a pair of
green sweat pants in the laundry, or that the sweat pants were not returned to him.
Plaintiff submitted a copy of the disposition of grievance form dated March 16, 2011,
which states that plaintiff’s second allegation of missing laundry was also investigated.
According to the form, defendant was unable to determine whether or not plaintiff sent
and received laundry on that date because “staff did not follow procedure” by
completing a clothing accountability log.              It was recommended that plaintiff be
reimbursed for this loss once he presented the appropriate clothing receipts. In his
appeal to the chief inspector, plaintiff stated that “some of the items were state issue
because in seg we are only allowed white items.”1 Plaintiff included a receipt showing
the purchase of three white boxers at $3.47 each.
       {¶4}    Defendant denied liability for the alleged missing sweat pants. Defendant
admitted liability for the portion of the missing laundry from January 27, 2011, that
plaintiff substantiated via receipts, two pair of boxer shorts. Defendant submitted a
report from the Institutional Inspector for MCI, Robert Smith, who verified that plaintiff
provided only one receipt which lists the purchase of boxer shorts. Although plaintiff
attempted to substantiate ownership of the remaining missing property via an inmate
property record from October 2010 and a contraband control slip, Smith related that
such forms were not proper substitutes for the required receipts.
       {¶5}    Plaintiff filed a response reiterating the allegations of his complaint and
asserting that the subject receipts had been previously “produced to satisfy the R.I.B.
appeal decision” regarding clothing and other items confiscated as contraband in
October 2010.


       1
         “Plaintiff cannot bring an action for the loss of state issue property considering he has no
ownership right in such property.” Sanford v. Ross Corr. Inst., Ct. of Cl. No. 2006-03494-AD, 2006-Ohio-
7311, ¶6. Therefore, any claim for the loss of state issue property is denied and shall not be further
addressed.
                                 CONCLUSIONS OF LAW
       {¶6}    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} “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.
       {¶8} 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} 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}      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.
       {¶11}      Plaintiff must produce evidence which affords a reasonable basis for
the conclusion that 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}      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 the
assertions of plaintiff particularly persuasive regarding the allegations of lost or stolen
property.
       {¶13}      Plaintiff cannot recover for property loss when he fails to produce
sufficient evidence to establish that defendant actually assumed control over the
property. Whiteside v. Orient Correctional Inst., Ct. of Cl. No. 2002-05751, 2005-Ohio-
4455 obj. overruled, 2005-Ohio-5068. Plaintiff failed to prove that defendant actually
exercised control over and failed to return his alleged missing sweat pants.
       {¶14}      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. Plaintiff has failed to present sufficient evidence (receipts) to
prove he owned the alleged missing laundry, with the exception of two pair of boxer
shorts.
       {¶15}      Negligence on the part of defendant has been shown in respect to the
issue of protecting plaintiff’s property.    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 two pair of boxer shorts.
       {¶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.
       {¶17}      Evidence has established the value of plaintiff’s missing property
amounted to $6.94, and the court finds plaintiff has suffered damages in the total
amount of $6.94.
                                 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
MARQUET TRAWICK

        Plaintiff

        v.

OHIO DEPT. OF REHABILITATION AND CORRECTION

        Defendant

Case No. 2011-09098-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 $6.94. Court costs are assessed against defendant.




                                           DANIEL R. BORCHERT
                                           Deputy Clerk

Entry cc:

Marquet Trawick, #563-071                  Gregory C. Trout, Chief Counsel
P.O. Box 56                                Department of Rehabilitation
Lebanon, Ohio 45036                        and Correction
                                           770 West Broad Street
                                           Columbus, Ohio 43222
9/15
Filed 9/21/11
Sent to S.C. reporter 1/27/12
