[Cite as Craft v. Madison Corr. Inst., 2011-Ohio-6958.]



                                       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
THOMAS E. CRAFT

        Plaintiff

        v.

MADISON CORRECTIONAL INSTITUTION

        Defendant

Case No. 2011-07109-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                          FINDINGS OF FACT
        {¶1}     On February 25, 2011, plaintiff, Thomas Craft, an inmate incarcerated at
defendant, Madison Correctional Institution (MaCI), was transferred from the general
population to a segregation unit. Plaintiff alleged that before he was taken from his
housing unit, he witnessed two unidentified inmates lock the door to his cell. After he
was released from segregation, plaintiff realized that several of his property items were
stolen. Plaintiff related the stolen property included: one pair Nike shoes, three athletic
shirts, four pair of underwear, two t-shirts, two pair of crew socks, two pair of deluxe
Quater socks, toe nail clippers, Muslim oil, one baseball jersey, a clipper guard, a blue
muscle shirt, one toothpaste, one pair of boot strings, two “Penthouse” magazines, two
towels, two wash cloths and five personal letters. Plaintiff also contended that “a few
months before” a corrections officer confiscated a lamp, a pair of AA batteries, and
plaintiff’s CD player which had been located in another inmate’s cell.                  Plaintiff
maintained that the confiscated property was lost or destroyed and that defendant failed
to follow the relevant administrative rules which allow him to mail the confiscated
property home.
        {¶2}     Plaintiff implied his property was stolen as a proximate result of
negligence on the part of MaCI staff in failing to adequately protect the property from
theft attempts.    Plaintiff filed this complaint seeking to recover $283.54, the stated
replacement cost of his alleged stolen property and reimbursement of the filing fee. The
$25.00 filing fee was paid.
       {¶3}   Defendant denied liability in this matter contending plaintiff failed to offer
any evidence to prove his property was stolen as a proximate result of any negligent
conduct on the part of defendant. Defendant stated that at the time he was placed in
segregation, plaintiff already possessed the “maximum number of some of the items for
which he now seeks compensation.” Defendant denied exercising control over any of
the “remaining items of property identified in Plaintiff’s complaint.”     Defendant argued
no evidence has been offered to establish plaintiff suffered property loss as a result of
any act attributable to MaCI personnel. Defendant advised MaCI staff searched for
plaintiff's property but did “not locate the property or any evidence of theft.”
       {¶4}   Defendant submitted a report from the institutional inspector, Jondrea
Parrish, who explained that after plaintiff was removed from the unit, a “property
inventory record was completed and demonstrates the inmate had the maximum
number of socks, undershirts, and underwear allowed (7 each). Additionally, the inmate
is permitted 1 pair of gym shoes and a pair of New Balance was indicated on the
property record.     Inmate Craft signed the property inventory record on 3/11/11,
indicating all his personal property listed had been returned to him and he was offered
an opportunity to inspect it before leaving the vault.”
       {¶5}   In addition, Parrish noted that “[t]here is no mention of towels, wash
cloths, CD player, lamp, batteries, letters, socks, underwear, baseball jersey, or muscle
shirt in the theft/loss reports he filed with MaCI staff.” Parrish concluded that plaintiff
“has demonstrated inconsistency in his report of what items were allegedly lost or
stolen.”
       {¶6}   Plaintiff filed a response wherein he reiterated that his cell door had been
closed by other inmates. In addition, plaintiff insisted that the vault officer would not
allow him to inspect his property prior to signing the inventory sheet. Plaintiff submitted
copies of property inventory records dated October 25, 2010, and February 22, 2011,
and receipts from a vendor dated November 30, 2010. Plaintiff maintained that such
records verified that he was in possession of the alleged missing items at the time he
was transferred from his housing unit.
                                  CONCLUSIONS OF LAW
       {¶7}   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.
       {¶8}   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.
       {¶9}   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} 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} Plaintiff's failure to prove delivery of the claimed missing property 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.
       {¶12} Plaintiff cannot recover for property loss when he fails to produce sufficient
evidence to establish 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.
       {¶13} 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.
       {¶14} “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;
      {¶15} 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 (1985), 84-02425. Plaintiff
must show defendant breached a duty or ordinary or reasonable care. Williams.
      {¶16} 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.
      {¶17} 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.
      {¶18} 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.
      {¶19} 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, the claimed
stolen property was indistinguishable and, therefore, no duty to search arose. Wallace
v. Grafton Corr. Inst., Ct. of Cl. No. 2009-01743, 2009-Ohio-5741.
      {¶20} Plaintiff has failed to prove, by a preponderance of the evidence, that
defendant was negligent in respect to making any attempts to recover indistinguishable
stolen property. See Williams v. Dept. of Rehab. & Corr., Ct. of Cl. No. 2005-11094-AD,
2006-Ohio-7207.
      {¶21} 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 in reference to the alleged confiscation of a lamp,
batteries, and a CD player, and plaintiff’s allegations regarding the theft of his property
after he was placed in segregation also lack credibility.
       {¶22} Plaintiff has failed to prove, by a preponderance of the evidence, any of
his 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.




                                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

THOMAS R. CRAFT

        Plaintiff

        v.

MADISON CORRECTIONAL INSTITUTION

        Defendant

Case No. 2011-07109-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:

Thomas R. Craft, #A468-182                        Gregory C. Trout, Chief Counsel
P.O. Box 740                                      Department of Rehabilitation
London, Ohio 43140                                and Correction
                                                  770 West Broad Street
                                                  Columbus, Ohio 43222




9/6
Filed 9/13/11
Sent to S.C. reporter 1/27/12
