[Cite as Konoff v. Allen Corr. Inst., 2011-Ohio-3858.]



                                       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




RODNEY L. KONOFF

        Plaintiff

        v.

ALLEN CORR. INST.

        Defendant


        Case No. 2010-11692-AD


Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                           FINDINGS OF FACT
        {¶ 1} On June17, 2010, employees of defendant, Department of Rehabilitation
and Correction (DRC), conducted a shakedown search at the Allen Correctional
Institution (ACI), a DRC facility. Plaintiff, Rodney Konoff, an inmate incarcerated at ACI,
stated that he was transported to segregation after contraband was found near his
bunk. Plaintiff contended his personal property was stolen after he was transferred to
segregation and before defendant’s personnel packed his property. Plaintiff pointed out
DRC staff failed to ensure his locker box was placed in a secure area once he was
removed from the general population, thus his property was left unsecured in his living
area for a period of approximately two hours while he remained in segregation.
According to plaintiff, he was released from segregation within a few hours after DRC
staff determined that the contraband did not belong to him. Plaintiff asserted that when
he returned to his housing area, he noticed his lock had been broken off his locker box
and all of his stored property had been stolen by other inmates. Plaintiff contended his
property items were stolen as a proximate cause of negligence on the part of defendant
in unreasonably delaying the pack-up of his property and thereby facilitating theft
attempts.
       {¶ 2} Plaintiff further alleged defendant failed to follow its own internal policies
and procedures with regard to protecting his property and conducting a search once the
theft was reported. Consequently, plaintiff filed this complaint seeking to recover
$323.00, the stated replacement cost for his missing property plus $10.00 for “the costs
and expenses of this litigation.”1        The $25.00 filing fee was paid and plaintiff also
included reimbursement of that cost as part of his damage claim.
       {¶ 3} Defendant denied liability and contended that plaintiff failed to offer any
evidence to prove that DRC personnel acted negligently during the June 17, 2010
shakedown search at ACI. Defendant maintained plaintiff’s property was locked in his
locker box and left on his bunk which is the usual practice in a dormitory-style housing
unit. Defendant contended any duty to protect plaintiff’s property was discharged when
plaintiff was supplied with a locker box to secure his property. Defendant further
asserted plaintiff did not produce any evidence to establish any of his property items
were lost or stolen while under the control of ACI staff.
       {¶ 4} Plaintiff filed a response arguing that once he was removed from the bunk
area, DRC staff assumed responsibility for his property. Secondly, plaintiff contended
that defendant failed to comply with the administrative rules for securing and storing
property of inmates who are taken into custody.
                                        CONCLUSIONS OF LAW
       {¶ 5} 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} 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} This court in Mullett v. Department of Correction (1976), 76-0292-AD, held


       1
           Expenses of this type, including postage and copying costs 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.
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} 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} 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.
       {¶ 10}     “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.
       {¶ 11}     The allegation 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 (1985), 84-02425. Plaintiff must show
defendant breached a duty of ordinary or reasonable care. Williams.
       {¶ 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}     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.
       {¶ 14}     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.
       {¶ 15}     In the instant claim, 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 and release from segregation. 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.
       {¶ 16}      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.
       {¶ 17}      Generally, defendant has a duty to conduct a search for plaintiff’s
property within a reasonable time after being notified of the theft. Phillips v. Columbus
Correctional Facility (1981), 79-0132-AD; Russell v. Warren Correctional Inst. (1999),
98-03305-AD.
       {¶ 18}      However, a search is not always necessary.              In Copeland v.
Department of Rehabilitation and Correction (1985), 85-03638-AD, the court held that
defendant had no duty to search for missing property if the nature of the property is
such that it is indistinguishable and cannot be traced to plaintiff. In the instant case, the
bulk of plaintiff’s property items claimed were indistinguishable and, therefore, no duty
to search arose.
       {¶ 19}      Plaintiff has failed to prove, by a preponderance of the evidence, his
property 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.
       {¶ 20}      In addition, 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, 479, 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.” Sharp v. Dep't of Rehab. & Corr., Ct. of Cl. No. 2008-
02410-AD, 2008-Ohio-7064, ¶5. Accordingly, to the extent that plaintiff alleges that
DRC somehow violated internal prison regulations and the Ohio Administrative Code,
he fails to state a claim for relief. Consequently, plaintiff's claim is denied.




                                 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




RODNEY L. KONOFF

      Plaintiff

      v.

ALLEN CORR. INST.

      Defendant

       Case No. 2010-11692-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:
Rodney L. Konoff, #A223-017    Gregory C. Trout, Chief Counsel
2338 N. West Street            Department of Rehabilitation
P.O. Box 4501                  and Correction
Lima, Ohio 45802-4501          770 West Broad Street
                               Columbus, Ohio 43222
SJM/laa
4/7
Filed 4/25/11
Sent to S.C. reporter 8/5/11
