[Cite as Turner v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-6671.]

                                      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




CARL E. TURNER

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION & CORRECTION

       Defendant

        Case No. 2010-06788-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                         FINDINGS OF FACT
        {¶ 1} Plaintiff, Carl E. Turner, an inmate under the custody and control of
defendant, Department of Rehabilitation and Correction (DRC), filed this action alleging
he suffered property loss on two separate occasions as a proximate cause of
negligence on the part of DRC employees in failing to protect his property. On or about
November 4, 2008, plaintiff was transferred from defendant’s London Correctional
Institution (LoCI) to defendant’s Lebanon Correctional Institution (LeCI). Incident to this
transfer, plaintiff’s personal property was inventoried, packed, and delivered into the
custody of LoCI staff. Plaintiff asserted that prior to the time he was transferred, two
rings he owned were delivered to LoCI employee Officer Gordon who, according to
plaintiff, then placed the rings in two separate envelopes, stapling the envelopes
together. Plaintiff contended his two rings were never transferred from LoCI to LeCI
and remain missing. Plaintiff noted his second property loss claim occurred on August
22, 2009 at LeCI. Plaintiff explained he was involved in a fight on that date, was placed
in isolation, and then escorted back to his cell to pack his property. In his complaint,
plaintiff initially related, “[w]hen I was brought back to my cell to do my pack up, the
following items were missing: Trimmers, A.C. adaptor, cooking pot, ear plugs, fan and
C.D. player.” Plaintiff maintained defendant should be held responsible for the loss of
the above mentioned items. Plaintiff requested damages in the amount of $2,500.00,
the value of all claimed missing property listed in the complaint. Payment of the filing
fee was waived.
       {¶ 2} Defendant denied liability in the matter pertaining to the alleged loss of
plaintiff’s rings by LoCI personnel. Defendant asserted it was unable to address the
issue of the loss of the rings due to the fact plaintiff failed to provide any information to
investigate this claim.
       {¶ 3} Additionally, defendant denied any liability regarding the claimed loss of
trimmers, an adapter, cooking pot, ear plugs, fan, and a CD player.               Defendant
explained these property items were confiscated as contraband due to the fact plaintiff
left the items in his cell with his cellmate in order to avoid being in violation of DRC
property volume restriction limits of 2.4 cubic feet.      Defendant pointed out plaintiff
violated DRC policy by leaving any property with his cellmate.                    Defendant
acknowledged the confiscated items were subsequently destroyed as contraband after
plaintiff was issued a contraband slip and refused to exercise any option regarding
disposition of the confiscated property; either authorizing the mailing of the items to an
outside address or donating the items or authorization destruction of the property.
Defendant argued proper policy and procedure were followed when the confiscated
contraband was destroyed.
       {¶ 4} Plaintiff filed a response addressing both of his property loss claims. In
connection with the loss of his rings, plaintiff submitted a copy of an “Inmate Property
Record-Disposition and Receipt” (DRC form 2055 or inventory) dated November 5,
2008 compiled incident to his transfer from LoCI to LeCI. Listed on this inventory copy
beside the caption “Ring/Wedding” under the amount section is the number “2.” The
listed limit beside the designation “Ring/Wedding” is the number “1.” Plaintiff submitted
a copy of a title for a wedding ring dated July 8, 2008 along with a photograph of a plain
gold wedding band.        Plaintiff submitted copies of multiple grievances he filed
complaining about the loss of two rings in connection with his transfer from LoCI to
LeCI. Plaintiff described the rings as follows: a one carat diamond wedding ring valued
at $3,500.00 and a second ring valued at $500.00. LeCI staff responded to plaintiff’s
grievances by finding that no rings were contained among his property items transferred
from LoCI to LeCI. In one grievance, the LeCI Inspector wrote, “[i]t should be noted that
London was contacted about this matter and it was discovered that your wedding rings
were not on your original DR&C 2055 (inventory) when you were placed in segregation
on 9/18/2008.” According to information contained in a submitted grievance decision,
LoCI staff did not recall packing rings owned by plaintiff when he was transferred from
LoCI to LeCI on November 5, 2008.
      {¶ 5} Concerning his second property loss claim, plaintiff denied he “entrusted
his property to the custody of his (cellmate).” Plaintiff contested defendant’s assertion
that the property confiscated by LeCI staff constituted contraband.        Plaintiff again
requested reimbursement for the stated value of all items claimed.
                               CONCLUSIONS OF LAW
      {¶ 6} 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.
      {¶ 7} 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.
      {¶ 8} 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.
      {¶ 9} 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.
      {¶ 10} 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.
       {¶ 11} 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.
       {¶ 12} 7)    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 particularly persuasive in regard to the fact he rightfully owned two
rings and he delivered two rings into the custody of defendant incident to his transfer
from LoCI to LeCI despite the listings on plaintiff’s submitted copy of DRC form 2055.
Plaintiff failed to offer conclusive proof he ever possessed more than one ring at any
time and has not provided evidence to support the contention he was permitted to
possess more than one ring. The trier of fact finds defendant’s assertions persuasive in
respect to the contention plaintiff left property items with his cellmate.
       {¶ 13} 8)    Plaintiff cannot recover for property loss when he fails to produce
sufficient evidence to establish defendant actually assumed control over property.
Whiteside v. Orient Correctional Inst., Ct. of Cl. No. 2002-05751, 2005-Ohio-4455 obj.
overruled, 2005-Ohio-5068. Plaintiff failed to prove defendant actually exercised control
over two rings.
       {¶ 14} 9)    Plaintiff’s failure to prove delivery of the above listed 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.
       {¶ 15} 10) It has been previously held an inmate plaintiff may recover the value
of confiscated contraband property destroyed by agents of defendant when those
agents acted without authority or right to carry out the property destruction. Berg v.
Belmont Correctional Institution (1998), 97-09261-AD; Wooden v. Ohio Dept. of Rehab.
& Corr., Ct. of Cl. No. 2004-01958-AD, 2004-Ohio-4820; Hemsley v. N. Cent.
Correctional Inst., Ct. of Cl. No. 2005-03946-AD, 2005-Ohio-4613; Mayfield v. Richland
Correctional Inst., Ct. of Cl. No. 2005-07979-AD, 2006-Ohio-358.
      {¶ 16} 11) Plaintiff has no right to pursue a claim for destroyed 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 contraband
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.     The acts of plaintiff in voluntarily
relinquishing possession of property to another inmate constitutes evidence that
ownership rights were relinquished. Johnson v. Ohio Reformatory for Women, Ct. of Cl.
No. 2004-01087, 2004-Ohio-4818.
      {¶ 17} 12) An inmate is barred from pursuing a claim for the loss of property
when such property is declared impermissible pursuant to departmental policy. Zerla v.
Dept. of Rehab. and Corr. (2001), 2000-09849-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




CARL E. TURNER

      Plaintiff

      v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

      Defendant

      Case No. 2010-06788-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:

Carl E. Turner, #467-332                        Gregory C. Trout, Chief Counsel
P.O. Box 209                                    Department of Rehabilitation
Orient, Ohio 43146                              and Correction
                                                770 West Broad Street
                                                Columbus, Ohio 43222
RDK/laa
10/21
Filed 11/15/10
Sent to S.C. reporter 2/18/11
