[Cite as Caddy v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-4216.]

                                      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




MATTHEW CADDY

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant

        Case No. 2009-08624-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION


                                         FINDINGS OF FACT

        {¶ 1} 1)       Plaintiff, Matthew Caddy, an inmate incarcerated at defendant’s
North Central Correctional Institution (NCCI), stated that he received a food box on
August 14, 2008 and placed the food in his locker box which he secured with a padlock
he had purchased at defendant’s Correctional Reception Center in December 2005. At
sometime while plaintiff was at work on August 14, 2008, an unidentified individual
broke into his locked locker box and stole his food items.
        {¶ 2} 2)       Plaintiff advised that he reported the theft to NCCI staff at
approximately 3:45 p.m. on August 14, 2008 and forwarded a list of the stolen items at
approximately 6:00 p.m. on that same day. According to plaintiff, NCCI personnel did
not conduct any search for his stolen property on the day that he reported the theft.
Plaintiff claimed that NCCI staff conducted a search on August 19, 2008 and recovered
some of his stolen property; specifically five jars of coffee. Plaintiff further claimed that
the recovered coffee was never returned to his possession. In all, plaintiff related that
he suffered the “loss of 10 jars of Folgers coffee; 18 Butterfinger candy bars; 18
Snickers; 16 Junior Mints; 16 Hershey’s candy bars with almonds; 19 Reese’s cups; 20
Kit Kat; 9 Skittles; 19 M & M, plain; 1 blue t-shirt (Fruit of the Loom); 1 bag Midnight
Special Tobacco; 1 padlock (damaged); 1 pouch Bugler tobacco.” Plaintiff asserted that
his property was stolen, damaged, or unrecovered as a proximate cause of negligence
on the part of NCCI personnel. Plaintiff filed this complaint seeking to recover damages
in the amount of $157.34, the replacement cost of his stolen and damaged property.
Payment of the filing fee was waived.
       {¶ 3} 3)    Plaintiff submitted a copy of a “Theft/Loss Report” compiled by NCCI
employee, Officer Burrell, after plaintiff reported the locker box theft on August 14, 2008.
Burrell noted that inmate living areas were searched “in and around area of theft.”
Apparently no property was recovered incident to this search. Plaintiff submitted a
handwritten statement from a fellow inmate identified as Robert Jenkins who wrote:
“[t]here was no search or shakedown on August 14, 2008.” Jenkins recalled “[t]here
was a search and shakedown on August 19, 2008.” Additionally, Jenkins recalled he
observed two NCCI employees “carrying jars of Folgers coffee they apparently had
seized.” The Jenkins statement was signed by five other inmates. Plaintiff submitted
typed and signed statements from fellow inmates Rodney A. Webber, Bennie S.
Robinson, Christopher Dodge, Curtis Malone, and Robert Jenkins. All five of these
typed statements contain the same language as the submitted handwritten statement
from Robert Jenkins.
       {¶ 4} 4)    Defendant contended that plaintiff failed to offer sufficient evidence to
establish his property was stolen and unrecovered as a proximate cause of negligence
on the part of NCCI staff. Defendant explained that two searches were conducted after
plaintiff reported the theft with the second search involving a shakedown of the area.
Defendant acknowledged that coffee was confiscated from an inmate during the course
of the shakedown search when he could not provide proof of ownership, reporting that
the coffee “was a gift from a friend.” Defendant related that “[t]he friend did have a
receipt for the coffee, so it was impossible to tell whether the coffee belong to Plaintiff or
the inmate’s friend.” Defendant advised that the confiscated coffee was destroyed as
contraband “[b]ecause of the inability to determine ownership.” Defendant insisted that
the confiscated coffee “could not be clearly identified” as plaintiff’s property, therefore it
was not returned to him.
      {¶ 5} 5)     Plaintiff filed a response asserting that NCCI staff failed to conduct a
timely search for his property after he reported the theft. Plaintiff contended that the
failure to conduct a timely search constituted actionable negligence. Plaintiff also
contended that defendant was negligent in providing him with an inadequate locker box
and the choice of an inadequate lock to secure his property.
                               CONCLUSIONS OF LAW
      {¶ 6} 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.
      {¶ 7} 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, 798 N.E.
2d 1121, ¶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.
      {¶ 8} 3)     Plaintiff has no right to pursue a claim for destroyed property in which
he cannot prove any right of ownership. DeLong v. Department of Rehabilitation and
Correction (1988), 88-06000-AD.
      {¶ 9} 4)     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.
      {¶ 10} 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.
      {¶ 11} 6)    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.
      {¶ 12} 7)    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.
       {¶ 13} 8)   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.
       {¶ 14} 9)   The fact that a theft may have occurred is insufficient to show
defendant’s negligence. Williams v. Southern Ohio Correctional Facility (1985), 83-
07091-AD. Plaintiff must show defendant breached a duty of ordinary or reasonable
care. Williams.
       {¶ 15} 10) Defendant is not responsible for actions of other 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; Melson v. Ohio Department of
Rehabilitation and Correction (2003), Ct. of Cl. No. 2003-04236-AD, 2003-Ohio-3615;
Jenkins v. Richland Correctional Inst., Ct. of Cl. No. 2003-01768-AD, 2003-Ohio-4483.
       {¶ 16} 11) The fact defendant supplied plaintiff with a locker box to secure
valuables constitutes prima facie evidence of defendant discharging its duty of
reasonable care. Watson v. Department of Rehabilitation and Correction (1987), 86-
02635-AD. Defendant has no duty to provide inmates access to extraordinary devices
in which to secure property. See Wallace v. Grafton Corr. Inst., Ct. of Cl. No. 2009-
01743-AD, 2009-Ohio-5741.
       {¶ 17} 12) 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.
       {¶ 18} 13) 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, all
of plaintiff’s property items claimed were indistinguishable and, therefore, no duty to
search arose.
       {¶ 19} 14) Plaintiff has failed to prove, by a preponderance of the evidence, that
defendant was negligent in respect to making any attempts to recover stolen property.
See Williams v. Dept. of Rehab. & Corr., Ct. of Cl. No. 2005-11094-AD, 2006-Ohio-
7207.     Plaintiff has failed to prove defendant delayed in conducting any search or
conducted an inadequate search.
        {¶ 20} 15) 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.




                                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




MATTHEW CADDY

        Plaintiff

        v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

        Defendant

        Case No. 2009-08624-AD

Clerk Miles C. Durfey


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.



                                                ________________________________
                                                MILES C. DURFEY
                                                Clerk

Entry cc:

Matthew Caddy, #506-006                         Gregory C. Trout, Chief Counsel
670 Marion Williamsport Road                    Department of Rehabilitation
Marion, Ohio 43302                              and Correction
                                                770 West Broad Street
                                                Columbus, Ohio 43222
RDK/laa
4/12
Filed 5/4/10
Sent to S.C. reporter 9/2/10
