[Cite as Brumbaugh v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-6975.]




                                     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

SCOTT BRUMBAUGH

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS

       Defendant

Case No. 2011-08067-AD

Deputy Clerk Daniel R. Borchert

                                    MEMORANDUM DECISION

                                        FINDINGS OF FACT
        {¶1}    Plaintiff, Scott Brumbaugh, an inmate incarcerated at defendant, Madison
Correctional Institution (MaCI), filed this action alleging that several items of his
personal property were lost or stolen on three separate occasions. The first incident
occurred when plaintiff was transferred from the MaCI general population to a
segregation unit on August 15, 2010. Plaintiff's personal property was packed and
delivered into the custody of MaCI staff incident to this transfer. Plaintiff related that
Corrections Officer (CO) Wilson “was responsible for my property getting packed up and
not letting other inmates steal my property.”               Plaintiff recalled the second incident
occurred on October 21, 2010 when he was again placed in segregation “for my safety”
and that when his property was returned to him he “noticed all my art & craft supplies
was missing.” Then according to plaintiff, on November 16, 2010, an “inmate some how
got the co to open my door and broke the padlock off my locker box and stole my MP3
player.”
        {¶2}    In his complaint, plaintiff listed the following items as missing: one velour
blanket, one RF modulator, two Tetris games, one GPX digital radio, two video cables,
one Casio F-28w-1 watch, two thermal tops, two thermal bottoms, six pair of socks, one
acrylic blanket, four immersion heaters, two digital TV antennas, one mirror, three blue
mesh shorts, two eight-inch fans, one MP3 player, one trimmer, two toenail clippers,
one surge protector, and numerous arts and craft supplies. Plaintiff submitted a copy of
his property inventory compiled on August 15, 2010, by CO Wilson. This inventory does
not bear plaintiff’s signature. Items relevant to this claim are limited to two thermal tops,
two thermal bottoms, and three pair of shorts.1 Plaintiff submitted a copy of the August
19, 2010 inventory listing the property items returned to him. This inventory does bear
plaintiff’s signature certifying that the items listed represent “a complete and accurate
inventory of all my personal property.” According to the form, only one pair of shorts
was listed and none of the thermal clothing was documented on the form.2
         {¶3}     In reference to the October 21, 2010 incident as described by plaintiff in
the complaint, the arts and crafts supplies were subsequently located and returned to
plaintiff on December 14, 2010. This is documented in the Disposition of Grievance
form completed by the MaCI Institutional Inspector, Jondrea Parrish, a copy of which
was filed by plaintiff with his complaint.
         {¶4}     Along with the complaint, plaintiff submitted a copy of an informal
complaint resolution form dated August 31, 2010, which documents that a fan and a
handheld game were found in the possession of plaintiff’s cell mate and were
subsequently returned to plaintiff. A disposition of grievance form dated September 27,
2010, notes that plaintiff’s missing typewriter had been located and soon would be
returned to him as well. Finally, according to the December 30, 2010 disposition of
grievance form, Inspector Parrish investigated the theft of plaintiff’s MP3 player and
concluded that plaintiff allegations of staff negligence were unfounded. Plaintiff
requested damage recovery in the amount of $1,000.00, the stated total value of the
alleged missing property. Payment of the filing fee was waived.


         1
             None of the remaining alleged missing property items are listed on the August 15 pack-up
sheet.
         2
          Although not listed on the August 15, 2010 pack-up sheet, the following relevant items were
listed as returned to plaintiff on August 19, 2010: one watch, six pair of socks, one fan, one beard
trimmer, at least one mirror and a reasonable amount of nail clippers and art supplies.
       {¶5}   Defendant denied liability in this matter contending that plaintiff failed to
offer any evidence to establish that any of his property was lost or stolen as a result of
any breach of a duty of care owed on the part of MaCI personnel in regard to inmate
property protection.    Defendant asserted that an investigation was completed in
reference to each incident and that there was no evidence that MaCI staff removed or
permitted the removal of plaintiff’s property from his cell. Defendant submitted a copy of
a report prepared by Inspector Parrish. The report concluded that plaintiff “has not
sufficiently established that MaCI is responsible for the theft/losses of the property he is
claiming in this case.” In addition, Parrish asserted that “MaCI staff properly addressed
this inmate’s property concern and security checks of the housing units were properly
conducted. * * * Finally, [plaintiff acknowledged] in his last property complaint that his
cell door was secured (locked) and that he had a locker box and ability to secure it
(lock).”
       {¶6}   Plaintiff filed a response reiterating the allegations of his complaint and
asserting that the COs routinely violate the administrative rules and regulations. Plaintiff
contends that CO Wilson acted unreasonably in that she delayed for 30 minutes to one
hour in packing his belongings after he was transferred to segregation. Plaintiff also
maintains that the MP3 player theft occurred because a substitute CO who was
assigned to the unit mistakenly opened plaintiff’s cell door and facilitated the theft.
                                  CONCLUSIONS OF LAW
       {¶7}   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.
       {¶8}   “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.
       {¶9} 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.
       {¶10}     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.
       {¶11}     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.
       {¶12}     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.
       {¶13}     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.
       {¶14}     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.
       {¶15}     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 the
assertions of plaintiff particularly persuasive regarding the August 15, 2010 allegations
of alleged lost or stolen property. Indeed, the court is not convinced that on August 15,
2010, plaintiff actually had in his possession all of the items mentioned in the complaint.
       {¶16}     Plaintiff cannot recover for property loss when he fails to produce
sufficient evidence to establish that defendant actually assumed control over the
property. Whiteside v. Orient Correctional Inst., Ct. of Cl. No. 2002-05751, 2005-Ohio-
4455 obj. overruled, 2005-Ohio-5068. Plaintiff failed to prove that defendant actually
exercised control over and failed to return his alleged missing property incident to the
August 15, 2010 transfer, with the exception of two thermal tops, two thermal bottoms,
and two pair of shorts.
       {¶17}     Plaintiff’s failure to prove delivery of the remaining property items to
defendant constitutes a failure to show imposition of a legal bailment duty on the part of
defendant in respect to lost property.      Prunty v. Department of Rehabilitation and
Correction (1987), 86-02821-AD.
       {¶18}     Plaintiff has failed to show a causal connection between the loss of his
remaining property as specified above and any breach of a duty owed by defendant in
regard to protecting inmate property.      Druckenmiller v. Mansfield Correctional Inst.
(1998), 97-11819-AD; Melson v. Ohio Department of Rehabilitation and Correction
(2003), Ct. of Cl. No. 2003-04236-AD, 2003-Ohio-3615.
       {¶19}     Concerning the MP3 player, 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.
       {¶20}     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.
       {¶21}     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.
       {¶22}     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, 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
plaintiff alleges that MaCI staff failed to comply with internal prison regulations and the
Ohio Administrative Code, he fails to state a claim for relief.
       {¶23}     Negligence on the part of defendant has been shown in respect to the
issue of protecting plaintiff’s property.   Billups v. Department of Rehabilitation and
Correction (2001), 2000-10634-AD. Plaintiff has offered sufficient proof to establish
defendant is liable for the loss of two thermal tops, two thermal bottoms, and two pair of
shorts.
       {¶24}     As trier of fact, this court has the power to award reasonable damages
based on evidence presented. Sims v. Southern Ohio Correctional Facility (1988), 61
Ohio Misc. 2d 239, 577 N.E. 2d 160.
       {¶25}     The standard measure of damages for personal property loss is market
value. McDonald v. Ohio State Univ. Veterinary Hosp. (1994), 67 Ohio Misc. 2d 40, 644
N.E. 2d 750.
       {¶26}     Damage assessment is a matter within the function of the trier of fact.
Litchfield v. Morris (1985), 25 Ohio App. 3d 42, 25 OBR 115, 495 N.E. 2d 462.
Reasonable certainty as to the amount of damages is required, which is that degree of
certainty of which the nature of the case admits. Bemmes v. Pub. Emp. Retirement
Sys. Of Ohio (1995), 102 Ohio App. 3d 782, 658 N.E. 2d 31.
       {¶27}     Evidence has established the value of plaintiff’s missing property
amounted to $45.40, and the court finds plaintiff has suffered damages in the total
amount of $45.40.
                                 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



SCOTT BRUMBAUGH

        Plaintiff

        v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS

        Defendant

Case No. 2011-08067-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 plaintiff in the amount of $45.40. Court costs are assessed against defendant.



                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:
Scott Brumbaugh, #545-146                         Gregory C. Trout, Chief Counsel
P.O. Box 740                                      Department of Rehabilitation
London, Ohio 43140                                and Correction
                                                  770 West Broad Street
                                                  Columbus, Ohio 43222

9/13
Filed 9/29/11
Sent to S.C. reporter 2/6/1
