[Cite as Felder v. Trumbull Correctional Inst., 2009-Ohio-7179.]

                                       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




MARION FELDER

       Plaintiff

       v.

TRUMBULL CORRECTIONAL INSTITUTION

       Defendant

        Case No. 2009-06711-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)         On April 22, 2009, plaintiff, Marion Felder, an inmate incarcerated
at defendant, Trumbull Correctional Institution (TCI), was placed in a segregation unit
and his personal property was packed by TCI staff. Plaintiff related he possessed
approximately sixty-five photographs at the time he was placed in segregation with
forty-five photographs forwarded to the TCI property vault for storage and the remaining
twenty photographs were sent with him to the segregation unit. Plaintiff further related
that when he received his property in the segregation unit he discovered seventeen
photographs were missing.
        {¶ 2} 2)         Plaintiff has alleged his photographs were lost or stolen while under
defendant’s control.         Consequently, plaintiff filed this complaint seeking to recover
$51.00, the stated value of the seventeen alleged missing photographs. Payment of the
filing fee was waived.
        {¶ 3} 3)         Defendant explained inmates who are assigned to a segregation
unit are permitted to possess three photographs. Plaintiff acknowledged he received
three photographs while assigned to the TCI segregation unit.             Defendant denied
seventeen photographs owned by plaintiff were lost or stolen while under the control of
TCI staff. Defendant contended plaintiff failed to offer sufficient evidence to prove his
seventeen photographs were lost or stolen while in defendant’s custody.               Neither
defendant nor plaintiff submitted a copy of any property record reflecting property
plaintiff possessed on or about April 22, 2009.
                                 CONCLUSIONS OF LAW
       {¶ 4} 1)      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.
       {¶ 5} 2)      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.
       {¶ 6} 3)      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.
       {¶ 7} 4)      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.
       {¶ 8} 5)      Plaintiff’s failure to prove delivery of certain photographs 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.
       {¶ 9} 6)      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.
       {¶ 10} 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, as 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.
      {¶ 11} 8)     Plaintiff has failed, to prove, by a preponderance of the evidence,
any of his property items were lost, discarded, or stolen as a proximate result of any
negligent conduct attributable to defendant. Fitzgerald v. Department of Rehabilitation
and Correction (1998), 97-10146-AD.


                               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




MARION FELDER

      Plaintiff

      v.

TRUMBULL CORRECTIONAL INSTITUTION

      Defendant

      Case No. 2009-06711-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 defendant. Court costs are assessed against plaintiff.



                                                ________________________________
                                                DANIEL R. BORCHERT
                                                Deputy Clerk
Entry cc:

Marion Felder, #536-542         Gregory C. Trout, Chief Counsel
5701 Burnett Road               Department of Rehabilitation
Leavittsburg, Ohio 44430-0901   and Correction
                                770 West Broad Street
                                Columbus, Ohio 43222
RDK/laa
10/29
Filed 12/2/09
Sent to S.C. reporter 3/18/10
