[Cite as Swain v. Toledo Correctional Inst., 2010-Ohio-3792.]

                                       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




SEAN PAUL SWAIN

        Plaintiff

        v.

TOLEDO CORRECTIONAL INSTITUTION

        Defendant

        Case No. 2009-09574-AD

Deputy Clerk Daniel R. Borchert


ENTRY OF DISMISSAL



        {¶ 1} On December 17, 2009, plaintiff, Sean Paul Swain, filed a complaint
against defendant, Toledo Correctional Institution. Plaintiff asserted that defendant was
negligent in allowing another inmate to enter his locked cell and steal his Sony CD
player and one CD. Plaintiff sought damages in the amount of $81.94 for the lost
property. Plaintiff submitted the $25.00 filing fee.
        {¶ 2} On February 24, 2010, defendant filed a motion to dismiss. Defendant
asserted plaintiff’s claim should be denied pursuant to Civ.R. 12(B)(6), failure to state a
claim upon which relief can be granted. In support of the motion, defendant stated that
plaintiff could not prove, by a preponderance of the evidence, that plaintiff’s property
loss was a result of negligence on the part of defendant. Defendant’s investigation
revealed that none of defendant’s agents unlocked plaintiff’s cell to allow access by
another inmate. Furthermore, plaintiff failed to secure his property in his locker box.
Therefore, plaintiff’s claim should be denied.
        {¶ 3} Plaintiff has not responded to defendant’s motion to dismiss.
Case No. 2009-09574-AD                   -2-                                     ENTRY

      {¶ 4} Civ.R. 12(B) in pertinent part states:
      {¶ 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} In plaintiff’s attachment to his pleading, he offers the affidavits of two
fellow inmates, Mike Rose and Brian Wickensimer.            However, neither of these
individuals witnessed defendant’s agent unlock plaintiff’s cell and allow access by an
unauthorized inmate. Plaintiff’s allegations concerning the way the theft of his cell was
achieved is not based on facts, but on speculation. Defendant’s investigation reveals
no evidence has been presented to show that defendant’s agent unlocked plaintiff’s cell
to allow access by another inmate.
      {¶ 9} Plaintiff has failed to show, by a preponderance of the evidence, that
defendant’s agents knew or had reason to know that another person would enter the
Case No. 2009-09574-AD                   -3-                                    ENTRY

plaintiff’s cell and steal his property. Warren v. Department of Corrections (1987), 36
Ohio Misc. 2d 18, 521 N.E. 2d 861. Prison officials are not the insurers of the safety of
a prisoner’s personal possessions. Warren.
      {¶ 10} The mere fact that a theft occurred is insufficient to show defendant’s
negligence.    Custom v. Southern Ohio Correctional Facility (1986), 84-02425.
Defendant is not responsible fo 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. 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.        The fact defendant supplied
plaintiff with a locker box and access to a lock to secure valuables constitutes prima
facie evidence of defendant’s discharging its duty of reasonable care.        Watson v.
Department of Rehabilitation and Correction (1987), 86-02635-AD. Defendant is not
required to take extraordinary measures to provide inmates means to secure their
property. Plaintiff has failed to prove, by a preponderance of the evidence, that his
property was taken as a proximate result of 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.
      {¶ 11} Therefore, defendant’s motion to dismiss is GRANTED. Plaintiff’s case is
DISMISSED. The court shall absorb the court costs of this case.




                                               ________________________________
                                               DANIEL R. BORCHERT
                                               Deputy Clerk

Entry cc:
Case No. 2009-09574-AD          -4-                                  ENTRY



Sean Paul Swain, #243-205             Stephen A. Young
2001 East Central Avenue              Department of Rehabilitation
P.O. Box 80033                        and Correction
Toledo, Ohio 43608                    770 West Broad Street
                                      Columbus, Ohio 43222
DRB/laa
Filed 4/9/10
Sent to S.C. reporter 8/13/10
