[Cite as Eismon v. Dept. of Rehab. & Corr., 2010-Ohio-3791.]

                                      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




ROBERT LEE EISMON

       Plaintiff

       v.

DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant

        Case No. 2009-09477-AD

Deputy Clerk Daniel R. Borchert


ENTRY OF DISMISSAL



        {¶ 1} On December 10, 2009, plaintiff, Robert Lee Eismon, filed a complaint
against defendant, Department of Rehabilitation and Correction. Plaintiff alleges on
August 3, 2009, after he returned from chow, he noticed that unknown individual(s) had
removed his full locker box and replaced it with an empty locker box. Plaintiff seeks
damages in the amount of $132.32.
        {¶ 2} On February 11, 2010, defendant filed a motion for extension of time to
submit the investigation report. On February 24, 2010, defendant filed a motion to
dismiss, pursuant to Civ.R. 12(B)(6), failure to state a claim upon which relief can be
granted. In support of the motion to dismiss, defendant states that plaintiff has failed to
provide any evidence that plaintiff’s theft was the result of a wrongful act committed by
defendant’s agents. Furthermore, plaintiff failed to show defendant breached any duty
of care owed to plaintiff. Therefore, plaintiff’s claim should be dismissed.
        {¶ 3} Plaintiff has not responded to defendant’s motion to dismiss.
        {¶ 4} Civ.R. 12(B) in pertinent part states:
Case No. 2009-09477-AD                    -2-                                     ENTRY

       {¶ 5} “When a motion to dismiss for failure to state a claim upon which relief can
be granted presents matters outside the pleading and such matters are not excluded by
the court, the motion shall be treated as a motion for summary judgment and disposed
of as provided in Rule 56.”
       {¶ 6} Civ.R. 56(C) states, in part, as follows:
       {¶ 7} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit County, 104 Ohio St. 3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St. 2d 317, 4 O.O. 3d 466, 364 N.E. 2d 267.
       {¶ 8} Plaintiff has failed to present any evidence or allegations that attribute the
loss of his property to the wrongdoing of any of defendant’s agents.
       {¶ 9} “In order for plaintiff to be compensated for his claimed loss he must show
by a preponderance of the evidence defendant’s agents knew or had reason to know
that another person would enter plaintiff’s cell during his absence with the intent to steal
property belonging to the prisoner.” Warren v. Department of Corrections (1987), 36
Ohio Misc. 2d 18, 52 N.E. 2d 861.
       {¶ 10} 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.
Case No. 2009-09477-AD                       -3-                                 ENTRY

       {¶ 11} The mere fact that a theft occurred is insufficient to show defendant’s
negligence. Custom v. Southern Ohio Correctional Facility (1985), 84-02425. Plaintiff
must show defendant breached a duty of ordinary or reasonable care. Custom.
       {¶ 12} 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.
       {¶ 13} 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.
       {¶ 14} 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.
       {¶ 15} “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.
       {¶ 16} Plaintiff has failed to prove, by a preponderance of the evidence, that his
property was stolen as a proximate result of any negligence on the part of 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.
       {¶ 17} Therefore, defendant’s motion for extension of time is MOOT and
defendant’s motion to dismiss is GRANTED. Plaintiff’s case is DISMISSED. The court
shall absorb the court costs of this case.
Case No. 2009-09477-AD          -4-                                  ENTRY




                                      ________________________________
                                      DANIEL R. BORCHERT
                                      Deputy Clerk

Entry cc:

Robert Lee Eismon, #517-490           Stephen A. Young
P.O. Box 7010                         Department of Rehabilitation
Chillicothe, Ohio 45601-7010          and Correction
                                      770 West Broad Street
                                      Columbus, Ohio 43222
DRB/laa
Filed 4/9/10
Sent to S.C. reporter 8/13/10
