[Cite as Brown v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-3851.]



                                                       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




FRANK C. BROWN, JR.

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant


        Case No. 2010-09221-AD


Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                         FINDINGS OF FACT
        {¶ 1} On December 12, 2009, employees of defendant, Department of
Rehabilitation and Correction (DRC), conducted a shakedown search at the London
Correctional Institution (LoCI), a DRC facility. Plaintiff, Frank C. Brown, Jr., an inmate
incarcerated at LoCI, stated that several items of his personal property were thrown
away by DRC staff during the course of the shakedown search. Specifically, plaintiff
asserted that a dictionary, two cups and a lid, a picture frame, coffee, nail clippers,
tweezers, toenail clippers, a legal envelope, salt/pepper shakers, a denture brush, a
NCCI copy card, a TV antenna, I.D. clips, personal carry medications and an alarm
clock were discarded by DRC personnel.
        {¶ 2} Plaintiff contended that defendant had no right or authority to throw away
his property items.        Consequently, plaintiff filed this complaint seeking to recover
$35.00, the stated replacement cost for his discarded property. Payment of the $25.00
filing fee was waived.
       {¶ 3} Plaintiff submitted a copy of an “Inmate Property Record-Disposition”
(inventory) dated November 25, 2009, compiled by North Central Correctional Institution
staff incident to plaintiff’s transfer to LoCI. Plaintiff asserts that any receipts for his
possessions were also discarded during the shakedown search.
       {¶ 4} Defendant denied liability and contended that plaintiff failed to offer any
evidence to prove that his property was discarded by DRC personnel during the
December 12, 2009 shakedown search at LoCI. Defendant further asserted plaintiff did
not produce any evidence to establish he possessed the alleged discarded property
items on December 12, 2009.
       {¶ 5} Plaintiff filed a response arguing that the shakedown was retaliatory and
performed merely for spite and meanness against him.
                                    CONCLUSIONS OF LAW
       {¶ 6} It has been determined by this court that when a defendant engaged in a
shakedown operation, it must exercise ordinary care in doing so.             Henderson v.
Southern Ohio Correctional Facility (1979), 76-0356-AD.
       {¶ 7} 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} 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.
       {¶ 9} Plaintiff has failed to prove a causal connection between the loss of his
property and any breach of duty owed by defendant in regard to protecting inmate
property. Druckenmiller v. Mansfield Correctional Inst. (1998), 97-11819-AD.
       {¶ 10} 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.
       {¶ 11} 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, as 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.
       {¶ 12} 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.
       {¶ 13}     “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.
       {¶ 14}     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. This 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.
       {¶ 15}     Plaintiff has failed to prove, by a preponderance of the evidence, that
any of his property was damaged as a proximate result of any negligent conduct
attributable to defendant. Fitzgerald v. Department of Rehabilitation and Correction
(1998), 97-10146-AD.
       {¶ 16}     The Supreme Court of Ohio has established that an employer is liable
for the tortious conduct of its employee only if the conduct is committed within the scope
of employment and if the tort is intentional, the conduct giving rise to the tort must
facilitate or promote the business of which the employee was engaged. Byrd v. Faber
(1991), 57 Ohio St. 3d 56, 565 N.E. 2d 584, citing Little Miami RR. Co. v. Wetmore
(1869), 19 Ohio St. 110, and Taylor v. Doctors Hosp. (1985), 21 Ohio App. 3d 154, 21
OBR 165, 486 N.E. 2d 1249.
       {¶ 17}     Further, an intentional and willful tort committed by an employee for his
own purposes constitutes a departure from the employment, so that the employer is not
responsible. Szydlowski v. Ohio Dept. of Rehab. & Corr. (1992), 79 Ohio App. 3d 303,
607 N.E. 2d 103, citing Vrabel v. Acri (1952), 156 Ohio St. 467, 46 O.O. 387, 103 N.E.
2d 564. The facts of this case, if taken as true, would constitute an intentional tort
committed by defendant’s employee performed for his own personal purposes. Thus,
following the rationale of Szydlowski, plaintiff would not have a cause of action against
defendant for intentional damage done to his property.
       {¶ 18}    To the extent that plaintiff alleges claims based upon retaliation, action
against the state under Section 1983, Title 42, U.S. Code may not be brought in the
Court of Claims because the state is not a “person” within the meaning of Section 1983.
See, e.g., Jett v. Dallas Indep. School Dist. (1989), 491 U.S. 701, 109 S. Ct. 2702, 105
L. Ed. 2d 598; Burkey v. Southern Ohio Correctional Facility (1988), 38 Ohio App. 3d
170, 528 N.E. 2d 607; White v. Chillicothe Correctional Institution (Dec. 22, 1992),
Franklin App. No. 92-AP-1229. Indeed, claims of retaliation are to be treated as an
action for alleged violations of constitutional rights under Section 1983, Title 42, U.S.
Code. Thus, this court is without jurisdiction to hear those claims.
                                                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




FRANK C. BROWN, JR.

        Plaintiff

        v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

        Defendant

         Case No. 2010-09221-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:

Frank C. Brown, Jr., #A439-439                    Gregory C. Trout, Chief Counsel
1580 State Route 56 SW                            Department of Rehabilitation
P.O. Box 69                                       and Correction
London, Ohio 43140-0069                           770 West Broad Street
                                                  Columbus, Ohio 43222
SJM/laa
3/9
Filed 4/21/11
Sent to S.C. reporter 8/5/11
