[Cite as Stevens v. Mansfield Correctional Inst., 2009-Ohio-7167.]

                                       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




KELLY JOE STEVENS

        Plaintiff

        v.

MANSFIELD CORRECTIONAL INSTITUTION

        Defendant

        Case No. 2009-06206-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)       Plaintiff, Kelly Joe Stevens, an inmate incarcerated at defendant,
Mansfield Correctional Institution (ManCI), asserted two fellow inmates entered his
unlocked cell, broke into his locked locker box, and stole a pair of his New Balance
tennis shoes that were stored inside the locker. Plaintiff further asserted the thieves
gained access to his cell when a ManCI employee unlocked the cell door. Plaintiff
stated he immediately reported the theft of his shoes to ManCI and a search was
conducted, but the search did not include the cell of the suspected thieves. Plaintiff
related he was informed by other inmates the identities of the thieves. Plaintiff recalled
his shoes were stolen at approximately 5:00 p.m. on February 10, 2009.
        {¶ 2} 2)       Plaintiff contended his shoes were stolen as a proximate cause of
negligence on the part of ManCI in allowing inmate thieves access to his locker box.
Consequently, plaintiff filed this complaint seeking to recover $60.16, the total purchase
price of a pair of New Balance Basketball shoes. Plaintiff submitted documentation
showing he purchased a pair of New Balance Basketball shoes on April 14, 2008.
Payment of the filing fee was waived.
      {¶ 3} 3)     Defendant argued there is no evidence available to prove ManCI staff
allowed access to plaintiff’s cell on February 10, 2009, thereby facilitating a theft.
Defendant acknowledged plaintiff’s cell door was open when ManCI personnel began
investigating the report of a theft. However, defendant noted plaintiff’s cellmate was
present in the cell at the time ManCI staff discovered the cell door was unsecured.
Therefore, defendant suggested “the cell was unsecured because [p]laintiff’s cellmate
was present in the cell at the time of the alleged theft.” Defendant explained a theft
report was compiled on February 10, 2009 incident to plaintiff reporting the theft of his
shoes, but this report “could not be located.”       Therefore, a second report ((copy
submitted) dated March 11, 2009 was filed. It was recorded on this theft report that
ManCI employee, Officer Hadden, searched cells 101-117 after plaintiff reported the
loss of his shoes.    The shoes were not recovered during the search.          Defendant
submitted copies of grievances plaintiff filed where he alleged his cellmate and another
inmate stole his shoes.
      {¶ 4} 4)     Plaintiff filed a response asserting defendant violated policy when he
was assigned a cellmate. Plaintiff related the cells at ManCI were designed “to house
one inmate per cell.”     Plaintiff maintained ManCI staff should have questioned his
cellmate at the time the theft was reported. Plaintiff argued defendant did not make a
“reasonable attempt to protect, or recover” his property.
                                CONCLUSIONS OF LAW
      {¶ 5} 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.
      {¶ 6} 2)     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} 3)     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.
      {¶ 8} 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.
      {¶ 9} 5)     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.
      {¶ 10} 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, 788 N.E. 2d 1088, ¶8 citing Menifee v. Ohio
Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707.
      {¶ 11} 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, 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.
      {¶ 12} 8) The fact defendant supplied plaintiff with a locker box to secure
valuables constitutes prima facie evidence of defendant discharging its duty of
reasonable care. Watson v. Department of Rehabilitation and Correction (1987), 86-
02635-AD.
      {¶ 13} 9) The fact that a theft occurred is insufficient to show defendant’s
negligence.    Williams v. Southern Ohio Correctional Facility (1985), 83-07091-AD;
Custom v. Southern Ohio Correctional Facility (1986), 84-02425. Plaintiff must show
defendant breached a duty or ordinary or reasonable care. Williams.
      {¶ 14} 10) Defendant is not responsible for thefts committed by inmates unless an
agency relationship is shown or it is shown that defendant was negligent. Walker v.
Southern Ohio Correctional Facility (1978), 78-0217-AD.
      {¶ 15} 11) The Supreme Court of Ohio has held that “[t]he language in R.C.
2743.02 that ‘the state’ shall ‘have its liability determined *** in accordance with the
same rules of law applicable to suits between private parties ***’ means that the state
cannot be sued for its legislative or judicial functions or the exercise of an executive or
planning function involving the making of a basic policy decision which is characterized
by the exercise of a high degree of official judgment or discretion.” Reynolds v. State
(1984), 14 Ohio St. 3d 68, 70, 14 OBR 506, 471 N.E. 2d 776; see also Von Hoene v.
State (1985), 20 Ohio App. 3d 363, 364, 20 OBR 467, 486 N.E. 2d 868.                     Prison
administrators are provided “wide-ranging deference in the adoption and execution of
policies and practices that in their judgment are needed to preserve internal order and
discipline and to maintain institution security.” Bell v. Wolfish (1979), 441 U.S. 520, 547,
99 S. Ct. 1861, 60 L. Ed. 2d 47.
       {¶ 16} 12) Prison   regulations,    including   those      contained   in   the    Ohio
Administrative Code, “are primarily designed to guide correctional officials in prison
administration rather than to confer rights on inmates.”            State ex rel. Larkins v.
Wilkinson, 79 Ohio St. 3d 477, 1997-Ohio-139, 683 N.E. 2d 1139, citing Sandin v.
Conner (1995), 515 U.S. 472, 481-482, 115 S. Ct. 2293, 132 L. Ed. 2d 418.
Additionally, this court has held that “even if defendant had violated the Ohio
Administrative Code, no cause of action would exist in this court. A breach of internal
regulations in itself does not constitute negligence.” Williams v. Ohio Dept. of Rehab.
and Corr. (1993), 67 Ohio Misc. 2d 1, 3, 643 N.E. 2d 1182. Accordingly, to the extent
plaintiff alleges ManCI staff failed to comply with internal prison regulations and the
Ohio Administrative Code, he fails to state a claim for relief.
       {¶ 17} 13) Plaintiff has failed to show any causal connection between any
property theft and any breach of a duty owed by defendant in regard to protecting
inmate property. Druckenmiller v. Mansfield Correctional Inst. (1998), 97-11819-AD;
Melson v. Ohio Department of Rehabilitation and Correction (2003), Ct. of Cl. No. 2003-
04236-AD, 2003-Ohio-3615.
       {¶ 18} 14) Plaintiff has failed to prove, by a preponderance of the evidence, his
items were stolen and unrecovered 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




KELLY JOE STEVENS

      Plaintiff

      v.

MANSFIELD CORRECTIONAL INSTITUTION

      Defendant

      Case No. 2009-06206-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:

Kelly Joe Stevens, #510-101                     Gregory C. Trout, Chief Counsel
P.O. Box 788                    Department of Rehabilitation
1150 N. Main Street             and Correction
Mansfield, Ohio 44901           770 West Broad Street
                                Columbus, Ohio 43222
RDK/laa
10/22
Filed 11/20/09
Sent to S.C. reporter 3/12/10
