[Cite as Tatom v. S. Ohio Corr. Facility, 2011-Ohio-7055.]



                                       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




RO-SHAWN TATOM

        Plaintiff

        v.

SOUTHERN OHIO CORRECTIONAL FACILITY

        Defendant

        Case No. 2011-07788-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                          FINDINGS OF FACT
        {¶1}     Plaintiff, Ro-Shawn Tatom, an inmate formerly incarcerated at defendant,
Southern Ohio Correctional Facility (SOCF), filed this action alleging that several items
of his personal property were lost or stolen when he was transferred to a segregation
unit on two separate occasions, June 25 and July 30, 2010. Plaintiff's personal property
was packed and delivered into the custody of SOCF staff incident to the transfers.
Plaintiff suggested that an unidentified Corrections Officer (CO) coerced him into
signing a property inventory form in order to receive his underclothing and hygiene
items during his stay in segregation. According to plaintiff, the form did not list all of his
property but he was told that the property was secure, it just wasn’t listed on the form.
Plaintiff recalled that when he was released from segregation, he reported his missing
property and a theft/loss report was prepared for this incident and for the earlier incident
as well. Finally, plaintiff asserted that during his transfer from SOCF to Ohio State
Penitentiary (OSP), either SOCF or OSP employees lost the files which contained the
documentation necessary to establish proof of ownership for the alleged missing
property.
      {¶2}     In his complaint, plaintiff listed the following items as missing: 274
photographs, 54 letters, and two legal books. Plaintiff requested damage recovery in
the amount of $1,076.00, stating that “I’d like $3 per photo, $1 per letter, $200 for both
legal books $100 each.”       Plaintiff noted that “many other items were lost, but no
evidence to support claim of possession without ‘lost’ paperwork.” Payment of the filing
fee was waived.
      {¶3}     Plaintiff submitted copies of three property inventory records dated July
29, 2009, June 25, 2010, and July 30, 2010. In addition, plaintiff submitted notification
of grievance forms, a theft/loss report, a disposition of grievance form dated September
22, 2010, and a decision from the chief inspector dated November 10, 2010. The chief
inspector stated as follows: “I reviewed the 7/30/10 and 6/25/10 packup sheets which
you signed attesting that each contained an accurate listing of all of your personal
property.    You did not relay any items were missing.       Based upon the information
provided, I do not find evidence to support your claim.”
      {¶4}     The court notes that the June 25, 2010 pack-up sheet lists a reasonable
amount of pictures and letters but does not document any legal books. At the bottom of
the page plaintiff signed that he received his property on July 6, 2010, and there is a
notation that contains the word “missing” but the remaining words are essentially
illegible. The July 30, 2010 pack-up sheet does not list any letters, photographs, legal
books, or legal papers having been found in plaintiff’s possession when his property
was packed incident to the transfer to segregation.
      {¶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 SOCF personnel in regard to inmate
property protection. Defendant asserted that plaintiff’s “claim involves three occasions
on which plaintiff’s property was packed-up, inventoried, and placed in storage as a
result of the plaintiff’s placement in security control on each occasion.”       Defendant
supported this contention with three attachments: pack-up sheets dated June 25, July
17, and July 30, 2010.       Defendant pointed out that there is no record of plaintiff
possessing two legal books on any of the three pack-up sheets.            Rather, the lists
document one book and describe it as “religious.” Although defendant contended that
each of the three forms records a reasonable amount of pictures, the court notes that
the July 30, 2010 inventory does not list any pictures or letters.1 Defendant maintained
that plaintiff acknowledged receipt of his property on each occasion and that according
to defendant “all such material was returned to the plaintiff.” Finally, defendant noted
that on December 21, 2010, plaintiff was transferred to OSP. Defendant filed a copy of
the inventory record for that transfer and items relevant to this claim include two books,
a reasonable amount of letters and papers, and assorted pictures followed by the
notation “all” or the number “911.” Plaintiff acknowledged receipt of these items on
December 22, 2010.
       {¶6}    Plaintiff filed a response essentially reiterating the allegations of his
complaint.
                                     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} 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}       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.
       {¶11}       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


       1
          The preprinted reference under the column that indicates the institutional limits for inmate
property, RA, or ‘reasonable amount” is merely circled and plaintiff maintains in his response that he
made such marks to indicate the items were not packed and were indeed missing.
defendant’s negligence. Barnum v. Ohio State University (1977), 76-0368-AD.
       {¶12}     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.
       {¶13}     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 allegations of alleged lost or
stolen property. 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
June 25, July 17, and July 30, 2010 transfers to segregation.
       {¶14}     Plaintiff’s failure to prove delivery of the 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.
       {¶15}     Plaintiff has failed to show a causal connection between the loss of his
property 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.
       {¶16}     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 SOCF staff failed to comply with internal prison regulations and the
Ohio Administrative Code, he fails to state a claim for relief.
                                 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




RO-SHAWN TATOM

        Plaintiff

        v.

SOUTHERN OHIO CORRECTIONAL FACILITY

        Defendant

         Case No. 2011-07788-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:

Ro-Shawn Tatom, #394-958                          Gregory C. Trout, Chief Counsel
878 Coitsville-Hubbard Road                       Department of Rehabilitation
Youngstown, Ohio 44505                            and Correction
                                                  770 West Broad Street
                                                  Columbus, Ohio 43222
SJM/laa
10/20
Filed 11/2/11
Sent to S.C. reporter 3/30/12
