[Cite as Schmuck v. N. Cent. Corr. Inst., 2010-Ohio-6655.]

                                       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




GREGORY SCHMUCK

       Plaintiff

       v.

NORTH CENTRAL CORR. INST.

       Defendant

        Case No. 2010-01204-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)         On May 23, 2009, plaintiff, Gregory Schmuck, an inmate
incarcerated at defendant, North Central Correctional Institution (NCCI), was transferred
from the NCCI general population to a segregation unit. Plaintiff’s personal property
was inventoried, packed, and delivered into the custody of NCCI staff incident to this
transfer. Plaintiff maintained that several items of his personal property were stolen
from his locker box in his housing unit after he was transferred to the NCCI segregation
unit. Plaintiff claimed the following property items were stolen: one pair of shower
shoes, one pair of work boots, one radio/CD player, one set of headphones, beard
trimmers, one fan, one blanket, one combination lock, and multiple food items.
        {¶ 2} 2)         On June 2, 2009, plaintiff filed an “Inmate Property Theft/Loss
Report” (theft report) referencing the alleged theft of his property on May 23, 2009.
According to information contained in the theft report (copy submitted), no action was
taken by NCCI staff in response to the reported property theft. Plaintiff implied his
property was stolen and unrecovered as a proximate cause of negligence on the part of
NCCI personnel.     Plaintiff filed this action seeking to recover $300.00, the stated
replacement cost of the alleged stolen property. Plaintiff did not provide any evidence
other than his own assertion to establish the value of the items listed in the complaint.
       {¶ 3} 3)      Defendant denied liability in this matter noting “[p]revious inmate
property records do not reflect ownership of the items Plaintiff claims are missing.”
Defendant submitted a copy of a December 24, 2008 property inventory listing property
plaintiff possessed on that date. Items listed on the December 24, 2008 inventory
relevant to this claim include a set of headphones, a fan, and multiple food products.
Shower shoes, boots, a radio/CD player, beard trimmers, a blanket, and a lock are not
listed on this inventory.   Defendant contended plaintiff failed to offer any proof to
establish he owned shower shoes, boots, a radio/CD player, a blanket, and a lock on
May 23, 2009, when he was transferred to segregation. Defendant advised plaintiff did
receive a pair of work boots on December 14, 2007 and he also received a CD player
on June 19, 2008. Defendant submitted a copy of plaintiff’s property inventory compiled
on May 23, 2009 when he was transferred to segregation.              This inventory bears
plaintiff’s signature acknowledging the document contains “a complete and accurate
inventory of all my personal property.” A fan and a radio are listed on the May 23, 2009
inventory. Defendant submitted records showing plaintiff received a food package on
May 13, 2009. Defendant contended plaintiff failed to offer any evidence to prove he
possessed any of the property claimed on May 23, 2009.
       {¶ 4} 4)      Plaintiff filed a response contending that he was ordered to sign the
May 23, 2009 property inventory acknowledging the document contained a complete
and accurate listing of all his property. Plaintiff again asserted he rightfully owned all
property claimed and the property was stolen on May 23, 2009 as a proximate cause of
negligence on the part of NCCI staff in protecting that property. Plaintiff submitted a
receipt from a vendor dated September 19, 2007 listing certain items shipped included a
blue blanket, beard trimmer, fan, and shower shoes.         Documentation submitted by
defendant shows plaintiff received a sundry package on September 24, 2007. Plaintiff
submitted receipts reflecting he received a food package in May 2009, headphone and
a radio/CD player in June 2008, as well as a pair of boots in December 2007. Also,
plaintiff submitted a receipt from the NCCI commissary showing he purchased food
products on May 20, 2009.
                               CONCLUSIONS OF LAW
      {¶ 5} 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.
      {¶ 6} 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,¶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.
      {¶ 7} 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.
      {¶ 8} 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.
      {¶ 9} 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.
      {¶ 10} 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.
      {¶ 11} 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, 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.
      {¶ 12} 8) 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 finds plaintiff’s
assertions credible that he possessed and owned all property claimed at the time he
was transferred on May 23, 2009.
       {¶ 13} 9) 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.
       {¶ 14} 10) 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.
       {¶ 15} 11) 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.
       {¶ 16} 12) 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. the bulk of plaintiff’s
property consisted of indistinguishable items.
       {¶ 17} 13) Plaintiff has proven, by a preponderance of the evidence, that
defendant was negligent in respect to making any attempts to recover distinguishable
stolen property. See Williams v. Dept. of Rehab. & Corr., Ct. of Cl. No. 2005-11094-AD,
2006-Ohio-7207. The distinguishable property items consisted of a set of headphones
and a radio/CD player.
       {¶ 18} 14) Negligence on the part of defendant has been shown in respect to a
failure by NCCI staff to make any reasonable attempts to recover distinguishable
property. Mullett.
       {¶ 19} 15) Plaintiff has failed to prove, by a preponderance of the evidence, that
any indistinguishable property was stolen or unrecovered 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.
      {¶ 20} 16) 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.
      {¶ 21} 17) In a situation where a damage assessment for personal property
destruction or loss based on market value is essentially indeterminable, a damage
determination may be based on the standard value of the property to the owner. This
determination considers such factors as value to the owner, original cost, replacement
cost, salvage value, and fair market value at the time of the loss. Cooper v. Feeney
(1986), 34 Ohio App.3d 282, 518 N.E. 2d 46.
      {¶ 22} 18) 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.
      {¶ 23} 19) 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.
      {¶ 24} 20) Plaintiff has suffered damages in the amount of $60.00.




                              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




GREGORY SCHMUCK
        Plaintiff

        v.

NORTH CENTRAL CORR. INST.

        Defendant

         Case No. 2010-01204-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 $60.00. Court costs are assessed against defendant.




                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:

Gregory Schmuck, #555-143                         Gregory C. Trout, Chief Counsel
2338 North West Street                            Department of Rehabilitation
Lima, Ohio 45801                                  and Correction
                                                  770 West Broad Street
                                                  Columbus, Ohio 43222
RDK/laa
9/13
Filed 11/2/10
Sent to S.C. reporter 2/11/11
