[Cite as Palmer v. London Corr. Inst., 2011-Ohio-6982.]



                                      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
JERAD PALMER

       Plaintiff

       v.

LONDON CORRECTIONAL INST.

       Defendant

Case No. 2011-08351-AD

Deputy Clerk Daniel R. Borchert

                                     MEMORANDUM DECISION

                                         FINDINGS OF FACT
        {¶1}    Plaintiff, Jerad Palmer, an inmate incarcerated at defendant, London
Correctional Institution (LoCI), alleged that while he was away from his cell, another
inmate placed a shank under his bed and a note regarding the weapon on the desk of
Corrections Officer (CO) Rohrer. Plaintiff further alleged that CO Rohrer left his post,
found the weapon, and then left the unit unattended while he located and detained
plaintiff. Plaintiff estimated that Rohrer was gone from the unit for approximately five
minutes and that Rohrer’s absence facilitated the theft of his property by other
unidentified inmates. Plaintiff listed the stolen property as one Skyworth flat screen TV,
one RCA remote control, one video cable, one pair of Nike shoes, one pair of blue jam
shorts, three pair of boxers, one sweat bottom and one top, two thermal bottoms and
one top, two towels, two pair of socks, one blue blanket, three t-shirts, one pair of black
sandals, one set of Koss headphones, and one pair of brown gloves.                        Plaintiff
contended his property was stolen as a proximate result of negligence on the part of
LoCI personnel. Consequently, plaintiff filed this complaint seeking to recover $391.79,
the total replacement cost of the property claimed. The filing fee was paid.
        {¶2}    Defendant denied liability in this matter contending plaintiff failed to prove
his loss was caused by any negligence on the part of LoCI staff. Defendant specifically
denied that the CO left “his post in the housing unit without first being properly relieved
by another correctional officer.” The LoCI institutional inspector, DeCarlo Blackwell,
compiled a report of the incident and noted that video evidence established that the
“Shift Captain Office (SCO) had Officer Roher properly relieved prior to him leaving his
post and escorting Inmate Palmer to the SCO.”          Blackwell also confirmed that the
inmate who placed the shank in plaintiff’s bunk area was identified “because he looked
into the camera after placing the kite on the officer’s desk. Video could not reveal the
inmates who stole Inmate Palmer’s property.”
       {¶3}   Plaintiff filed a response insisting that he complied with all administrative
procedures and contended that defendant should reimburse him for the value of his
stolen property.    In addition, plaintiff implied that defendant lost, misplaced, or
unreasonably delayed in responding to his theft/loss reports and grievances.
                                  CONCLUSIONS OF LAW
       {¶4}   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, 788 N.E.2d 1088 citing Menifee v. Ohio
Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707.
       {¶5}   "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, 798 N.E.2d
1121, 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}   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}   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 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} 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.
      {¶11} 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} 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. However, in the instant claim,
plaintiff has failed to prove defendant was negligent or that CO Rohrer abandoned his
post in the housing unit. Therefore, no liability shall attach to defendant as a result of
any theft based on this contention.
      {¶13} Plaintiff has failed to prove, by a preponderance of the evidence, that 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; Hall v. London Correctional Inst., Ct. of Cl. No. 2008-04803-AD, 2008-Ohio-7088,
Brady v. Lebanon Correction Inst., Ct. of Cl. No. 2010-01743-AD, 2010-Ohio-5456.
      {¶14} Moreover, 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. Accordingly, to the extent
that plaintiff alleges that LoCI staff somehow violated internal prison regulations and the
Ohio Administrative Code, he fails to state a claim for relief. See Sharp v. Dept of
Rehab. & Corr., Ct. of Cl. No. 2008-02410-AD, 2008-Ohio-7064, ¶5.
                                 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

JERAD PALMER

        Plaintiff

        v.

LONDON CORRECTIONAL INST.

        Defendant

Case No. 2011-08351-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:

Jerad Palmer, #639-292                            Gregory C. Trout, Chief Counsel
1580 St. Rt. 56                                   Department of Rehabilitation
London, Ohio 43140                                and Correction
                                                  770 West Broad Street
                                                  Columbus, Ohio 43222

9/15
Filed 9/29/11
Sent to S.C. reporter 2/6/12
