[Cite as Savage v. Madison Corr. Inst., 2011-Ohio-3956.]



                                      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




JAMES JEREMY SAVAGE

       Plaintiff

       v.

MADISON CORR. INST.

       Defendant

        Case No. 2010-12362-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                          FINDINGS OF FACT
        {¶ 1} On May 10, 2010, plaintiff, James Savage, an inmate formerly
incarcerated at defendant, Madison Correctional Institution (MaCI), was transferred from
the general population to a segregation unit. Plaintiff alleged that at sometime during
the transfer procedure MaCI staff instructed another inmate (Powell) to gather plaintiff’s
personal property and pack it for storage. According to plaintiff, inmate Powell and
other unidentified inmates stole several items from plaintiff’s locked locker box. Plaintiff
related the stolen property included: one pair of Timberland boots, thirteen compact
discs, three blue t-shirts, two white t-shirts, four pair of socks, twenty-three embossed
envelopes, various commissary food, and personal hygiene items. Additionally, plaintiff
requested reimbursement of $36.44 for the cost of copies and postage. Postage and
copying expenses are not compensable in a claim of this type. The request to include
these expenses in the damage claim is denied and shall not be further addressed.
        {¶ 2} Plaintiff submitted a letter he allegedly received from inmate Powell in
reference to the inventory and pack-up of plaintiff’s property. Plaintiff did not submit a
copy of the inventory property record relevant to the transfer date for May 10, 2010.
Plaintiff asserted his property was stolen as a proximate result of negligence on the part
of MaCI staff in failing to adequately protect the property from theft attempts. Plaintiff
filed this complaint seeking to recover $ 405.12, the stated total replacement cost of his
alleged stolen property. Payment of the filing fee was waived.
       {¶ 3} Defendant denied any liability in this matter contending plaintiff failed to
offer any evidence to prove his property was stolen as a proximate result of any
negligent conduct on the part of defendant. Defendant denied ever exercising control
over any of the alleged stolen property items. Defendant argued no evidence has been
offered to establish plaintiff suffered property loss as a result of any act attributable to
MaCI personnel. Defendant advised MaCI staff investigated plaintiff’s “allegations and
could not establish that a theft occurred.” Defendant suggested plaintiff had a history of
trading or selling his property in violation of administrative rules and regulations.
       {¶ 4} Plaintiff filed a response essentially reiterating the allegations made in the
complaint. Plaintiff claimed he was taken to segregation at 1:00 p.m. on May 10, 2010,
and his property was not secured or inventoried until 3:00 p.m. Plaintiff also admitted
that some of his claimed missing property was located by MaCI staff and returned to
him.
                                    CONCLUSIONS OF LAW
       {¶ 5} 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} 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.
       {¶ 7} 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.
       {¶ 8} 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} Plaintiff's failure to prove delivery of the claimed missing 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.
      {¶ 10} Plaintiff cannot recover for property loss when he fails to produce sufficient
evidence to establish 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.
      {¶ 11} 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.
       {¶ 12} "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.
       {¶ 13} The allegation that a theft may have occurred is insufficient to show
defendant's negligence. Williams v. Southern Ohio Correctional Facility (1985), 83-
07091-AD; Custom v. Southern Ohio Correctional Facility (1985), 84-02425. Plaintiff
must show defendant breached a duty of ordinary or reasonable care. Williams.
       {¶ 14} 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} 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.
       {¶ 16} Plaintiff may show defendant breached its duty of reasonable care by
providing evidence of an unreasonable delay in packing inmate property. Springer v.
Marion Correctional Institution (1981), 81-05202-AD.
       {¶ 17} Plaintiff has failed to show defendant negligently or intentionally failed to
secure plaintiff's property during the two-hour time period between his transfer to
segregation and the pack-up of his property. In addition, plaintiff failed to prove any
unreasonable delay in packing his property resulted in the theft of his          property.
Stevens v. Warren Correctional Institution (2000), 2000-05142-AD; Elam v. Richland
Correctional Institution, Ct. of Cl. No. 2008-11231-AD, 2009-Ohio-4276.
      {¶ 18} 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 plaintiff’s
assertions or the statement of inmate Powell to be particularly persuasive.
      {¶ 19} Plaintiff has failed to prove, by a preponderance of the evidence, any of
his property was stolen or unrecovered as a proximate result of any negligent conduct
attributable to defendant. Fitzgerald v. Department of Rehabilitation and Correction
(1998), 97-10146-AD; Hall v. London Correctional Inst., Ct. of Cl. No. 2008-04803-AD,
2008-Ohio-7088.
                                 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




JAMES JEREMY SAVAGE

        Plaintiff

        v.

MADISON CORR. INST.

        Defendant

         Case No. 2010-12362-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:

James Jeremy Savage, #589-051                     Gregory C. Trout, Chief Counsel
1150 N. Main Street                               Department of Rehabilitation
P.O. Box 788                                      and Correction
Mansfield, Ohio 44901-0788                        770 West Broad Street
                                                  Columbus, Ohio 43222
SJM/laa
4/7
Filed 4/27/11
Sent to S.C. reporter 8/10/11
