[Cite as McCall v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-4148.]



                                      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




DAMON L. MCCALL

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS

       Defendant

        Case No. 2010-09191-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                         FINDINGS OF FACT
        {¶1}    On July 19, 2010, plaintiff, Damon McCall, an inmate formerly
incarcerated at defendant, Pickaway Correctional Institution (PCI), filed this action
alleging several items of his personal property were lost or stolen on August 6, 2009, as
a proximate result of negligence on the part of PCI staff. Plaintiff listed the lost or stolen
items and their values as follows: one digital alarm clock and cassette player, $100; two
bath towels, $16.06; one large print Arabic Qur’an, $45; two pair of headphones, $18.73
each; commissary items, $13.92 (which includes one A/C adapter, $8.61); one Afro
comb, $1.05; and copying and postage fees, between $7 and $12.1
        {¶2}    According to plaintiff, he was transferred from the general population to a
segregation unit on August 6, 2009, and he was not allowed to be present when his
property was inventoried, packed, and delivered into the custody of PCI personnel
incident to this transfer.       Plaintiff asserted PCI Corrections Officer (CO) Parker either


        1
         Postage and copying expenses are not compensable in a claim of this type. The request to
include these expenses in the damage claim is denied and shall not be further addressed.
stole or lost his personal property after he was placed in segregation. In addition,
plaintiff recalled that Parker issued him a contraband slip in reference to a clock radio
and two sets of headphones. Finally, plaintiff claimed CO Parker took control of his
possessions he had with him in the segregation holding cell which he listed as “all the
commissary I had just purchased,” “my state blues & my tennis shoes & hat.”2
        {¶3}   Plaintiff requested damages in the amount of $3,000. The $25.00 filing
fee was paid. On May 17, 2010, a judge of the Court of Claims issued an entry wherein
plaintiff’s case was transferred to the administrative docket inasmuch as the judge
determined the value of plaintiff’s claim does not exceed $2,500.00. See R.C. 2743.10.
        {¶4}   On or about November 16, 2009, plaintiff was released from segregation
and then transferred from PCI to the Mansfield Correctional Institution (ManCI). Plaintiff
asserted that after he regained possession of his property all of the above listed items
were missing. Plaintiff submitted a copy of the pack-up inventory compiled on August 6,
2009. The only items listed relevant to this claim are a hat, two towels, and an adapter.
        {¶5}   Nonetheless, plaintiff insisted that all of his property listed as missing was
delivered into the custody of PCI personnel.                 Plaintiff contended his radio and
headphones were confiscated by PCI staff as contraband and were not returned to him.
Plaintiff submitted a copy of an inventory compiled by ManCI personnel on November
16, 2009. Items relevant to this claim listed on the inventory are a hat and two towels
(both designated as state issue), and one pair low gym shoes (black/white).
        {¶6}   Plaintiff asserted PCI staff confiscated his clock radio and headphones,
placed them in storage, and lost or destroyed those items. Plaintiff submitted additional
information documenting his attempts to locate the missing items and contraband.
        {¶7}    Defendant admitted liability for the loss of plaintiff’s clock radio3 and
headphones. Defendant asserted that the clock radio and headphones were taken as
contraband, placed in the vault, and destroyed.                 According to defendant, plaintiff
subsequently provided sufficient proof of ownership for the clock radio.                   Defendant
denied liability for any loss of property incident to the August 6, 2009 transfer to a


        2
         “Plaintiff cannot bring an action for the loss of state issue property considering he has no
ownership right in such property.” Sanford v. Ross Corr. Inst., Ct. of Cl. No. 2006-03494-AD, 2006-Ohio-
7311, ¶6. Therefore, any claim for the loss of state issue property is denied and shall not be further
addressed.
segregation unit. Defendant contended plaintiff was permitted to view his property after
it was packed on August 6, 2009, and that plaintiff signed the inventory sheet declaring
all of his property was secured by PCI staff.
       {¶8}   Plaintiff filed a response wherein he asserted that due to a change in
institutional rules, inmates are no longer permitted to purchase or receive adapters or
electronic items with the exception of televisions and typewriters.              Thus plaintiff
maintained that inmates are required to operate electronic devices on battery power, the
batteries cost $2.00 per pack, and that therefore, defendant is liable to plaintiff for the
future cost of batteries. In addition, plaintiff pointed out that the property inventory he
signed and defendant referenced in its investigation report was dated June 12, 2009.
Plaintiff insisted he was not permitted to view his property from the time he was
transferred to segregation until after he arrived at ManCI.
                                      CONCLUSIONS OF LAW
       {¶9}   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.
       {¶10} 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.
       {¶11} 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, 788 N.E. 2d 1088, ¶8 citing Menifee v. Ohio
Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707.
       {¶12} “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; and Mussivand v. David
(1989), 45 Ohio St. 3d 314, 318, 544 N.E. 2d 265.
       {¶13} Plaintiff has the burden of proving, by a preponderance of the evidence,

       3
       Defendant noted plaintiff had the clock radio for at least eight years.
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} 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 regarding the loss of every claimed item.
       {¶15} Negligence on the part of defendant has been shown in respect to a
portion of the property claimed. Baisden v. Southern Ohio Correctional Facility (1977),
76-0617-AD. Negligence on the part of defendant has been shown in respect to the
issue of protecting plaintiff’s property after he was transferred to segregation on August
6, 2009. 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 a
clock radio, two pair of headphones and an adapter.
       {¶16} The assessment of damages is a matter within the province of the trier of
fact. Litchfield v. Morris (1985), 25 Ohio App. 3d 42, 25 OBR 115, 495 N.E. 2d 462.
       {¶17} 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.
       {¶18} “The measure of damages for loss or injury to personal property is
generally the reasonable market value of the property at the time of loss. See 30 O. Jur.
3d Sec. 70 at 78 (1981).” Craft v. Oney (Oct. 17, 1984), Montgomery App. No. 8766.
       {¶19} Evidence has shown plaintiff’s clock radio was at least eight years old
when the incident forming the basis of this claim occurred. Based on the fact the clock
radio constituted depreciable property, the court finds defendant is liable to plaintiff for
property loss in the amount of $50.00, the fair market value of the clock radio,
headphones and adapter, plus the $25.00 filing fee which may be reimbursed as
compensable costs pursuant to R.C. 2335.19.           See Bailey v. Ohio Department of
Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d.
                              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




DAMON L. MCCALL

      Plaintiff

      v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS

      Defendant

      Case No. 2010-09191-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 $75.00, which includes the filing fee.       Court costs are
assessed against defendant.




                                        DANIEL R. BORCHERT
                                        Deputy Clerk

Entry cc:

Damon L. McCall, #233-304               Gregory C. Trout, Chief Counsel
P.O. Box 788                            Department of Rehabilitation
Mansfield, Ohio 44901                   and Correction
                                        770 West Broad Street
                                        Columbus, Ohio 43222
SJM/laa
4/20
Filed 5/24/11
Sent to S.C. reporter 8/19/11
