[Cite as Render v. Lebanon Correctional Inst., 2011-Ohio-2493.]

                                      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




DAVID RENDER

       Plaintiff

       v.

LEBANON CORRECTIONAL INST.

       Defendant

        Case No. 2010-09361-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                         FINDINGS OF FACT
        {¶ 1} “1)      Plaintiff, David Render, an inmate formerly incarcerated at defendant,
Lebanon Correctional Institution (LeCI), filed this action alleging his personal property
was stolen as a proximate cause of negligence on the part of LeCI personnel. Plaintiff
explained he was transferred to an isolation unit from the LeCI general population at
approximately 5:29 p.m. on April 26, 2009 and was escorted back to his cell at 11:40
p.m. on that same day to pack his personal property. According to plaintiff, when he
returned to his cell to pack his property he discovered his radio, headphones, CD
player, eight CDs, lamp, adapter, and hot pot were missing.             Plaintiff asserted his
property items were stolen due to the fact LeCI employee, Officer Brown, failed to
secure his cell door when he was escorted to isolation, thereby facilitating a theft.
Additionally, plaintiff claimed LeCI staff refused to conduct any search after he reported
the theft of his property. Plaintiff maintained his property was stolen and unrecovered
as a result of defendant’s negligence and he has consequently filed this complaint
seeking to recover $142.98, the estimated value of his alleged stolen property.
Payment of the filing fee was waived.
       {¶ 2} “2)   Defendant asserted plaintiff has failed to offer any evidence to prove
his property was stolen and unrecovered as a result of any negligent act or omission on
the part of LeCI staff. Defendant specifically denied plaintiff’s cell door was unsecured
when he was initially transferred to a segregation unit on April 26, 2009. Defendant
explained plaintiff’s property was initially packed, inventoried, and delivered to the LeCI
property room by LeCI employee, Officer Cook. According to defendant, plaintiff was
subsequently escorted to the LeCI property room where he was permitted to review his
“Inmate Property Record” listing property items that had been packed by Officer Cook.
Defendant advised plaintiff signed the “Inmate Property Record” acknowledging it as a
complete and accurate inventory of all his property. Apparently, none of the items
plaintiff claimed in his complaint were listed on the “Inmate Property Record.”
Defendant chose to not supply this court with a copy of any inventory of plaintiff’s
property. Defendant maintained plaintiff made no complaint regarding missing property
when he examined and signed the “Inmate Property Record” on April 26, 2009.
       {¶ 3} “3)   Plaintiff filed a response stating he discovered “his Super-3 radio, CL-
20 headphones, C-D player, Adapter AC universal, Lap, 8 C.D’s and his Hot pot was
missing from his belongings on 5-13-2009.” Plaintiff reasserted defendant failed to
secure his cell door after 5:29 p.m. on April 26, 2009; thereby facilitating the theft of the
mentioned property items. Plaintiff admitted he signed his “Inmate Property Record” on
April 26, 2009 at 11:49 p.m. acknowledging the document contained a complete and
accurate inventory of his property. Plaintiff contended defendant should bear liability for
the loss of his property since no LeCI personnel conducted any search for the property
when he reported the theft.
                                CONCLUSIONS OF LAW
       {¶ 4} 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.
       {¶ 5} 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.
      {¶ 6} 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.
      {¶ 7} 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.
      {¶ 8} 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.
      {¶ 9} 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.
      {¶ 10} 7)    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.
      {¶ 11} 8)    The allegation that a theft may have occurred is insufficient to show
defendant’s negligence. Williams v. Southern Ohio Correctional Facility (1985), 83-
07091-AD; Custom v. Southern Ohio Correctional Facility (1986), 84-02425. Plaintiff
must show defendant breached a duty of ordinary or reasonable care. Williams.
      {¶ 12} 9)    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} 10) Defendant, when it retains control over whether an inmate’s cell door
is to be open or closed, owes a duty of reasonable care to inmates who are exclusively
forced to store their possession in the cell while they are absent from the cell. Smith v.
Rehabilitation and Correction (1978), 77-0440-AD.
       {¶ 14} 11) However, in the instant claim, plaintiff has failed to prove defendant
negligently or intentionally unlocked his cell door, and therefore, no liability shall attach
to defendant as a result of any theft based on this contention. Carrithers v. Southern
Ohio Correctional Facility (2002), 2001-09079-AD.
       {¶ 15} 12) 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 reference to any theft of his property
actually took place. The trier of fact does not believe plaintiff’s assertions regarding a
property theft on April 26, 2009.
       {¶ 16} 13) 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.
       {¶ 17} 14) In the instant claim, plaintiff has failed to prove any delay in packing
his property resulted in any property theft. Stevens v. Warren Correctional Institution
(2000), 2000-05142-AD; Knowlton v. Noble Corr. Inst., Ct. of Cl. No. 2005-06678-AD,
2005-Ohio-4328.
       {¶ 18} 15) 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.
       {¶ 19} 16) 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,
many of the property items claimed were indistinguishable and, therefore, no duty to
search arose. Wallace v. Grafton Corr. Inst., Ct. of Cl. No. 2009-01743, 2009-Ohio-
5741. Furthermore, no duty to search arises under circumstances where an inmate
plaintiff can not establish a theft actually occurred.
      {¶ 20} 17) Plaintiff has failed to prove, by a preponderance of the evidence, any
of his property was stolen as a proximate result of any negligent conduct attributable to
defendant. Fitzgerald v. Department of Rehabilitation and Correction (1998), 97-10146-
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




DAVID RENDER

      Plaintiff

      v.

LEBANON CORRECTIONAL INST.

      Defendant

      Case No. 2010-09361-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:

David Render, #519-510          Gregory C. Trout, Chief Counsel
P.O. Box 45699                  Department of Rehabilitation
Lucasville, Ohio 45699          and Correction
                                770 West Broad Street
                                Columbus, Ohio 43222
RDK/laa
2/9
Filed 2/24/11
Sent to S.C. reporter 5/16/11
