[Cite as Nolde v. Lebanon Correctional Inst., 2010-Ohio-5457.]

                                      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 NOLDE

       Plaintiff

       v.

LEBANON CORRECTIONAL INSTITUTION

       Defendant

        Case No. 2010-02812-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)       Plaintiff, Thomas Nolde, an inmate incarcerated at defendant,
Lebanon Correctional Institution (LeCI), alleged a radio, fan, and clock were stolen from
his cell housing unit on June 30, 2009, at a time when he and his cellmate, David Brady,
were away from the cellblock. Plaintiff recalled he and Brady left the cell (1-B-16) at
approximately 7:15 a.m. on June 30, 2009 to go to work. Plaintiff further recalled he
“secured” the cell door when he and Brady left and requested that the LeCI officer on
duty, Askew “to deadlock our door.” Plaintiff pointed out that when he returned from
work at approximately 10:10 a.m. he discovered property items were missing from his
cell. Plaintiff recorded the cell door was locked when he and Brady returned, yet at
some time during their absence property stored in the cell had been stolen. Plaintiff
suggested Officer Askew had unlocked the cell door thereby facilitating the theft of his
property. Plaintiff asserted no LeCI staff conducted any search for his fan, radio, and
clock after he reported the theft.             Plaintiff contended his property was stolen and
unrecovered as a proximate cause of negligence on the part of LeCI personnel in
unlocking his cell door and failing to conduct a proper search for the reported stolen
items. Consequently, plaintiff filed this complaint seeking to recover $85.94, the total
replacement cost of the property claimed. Payment of the filing fee was waived.
         {¶ 2} 2)   Plaintiff submitted a written statement from a fellow inmate, Dale
(Dean) Barnett 579-143, who is housed in the same cellblock as plaintiff and Brady.
Barnett wrote “on numerous occasions I have observed C/O Askew opening all the
doors in the block when it is called to chow, even the doors that are to be deadlocked.”
Barnett also noted “I have had inmates ask me to make sure that their door is locked
when the block is called to chow because they do not trust C/O Askew to deadlock their
door.”
         {¶ 3} 3)   Plaintiff submitted an additional written statement from his cellmate,
David Brady, who reported a request was made to Officer Askew on June 30, 2009 to
deadlock the cell door of cell 1-B-16. Brady indicated the request was made both
verbally and in writing. Brady also indicated the cell door of 1-B-16 was secured on
June 30, 2009 before he and plaintiff went to work and upon returning to the cellblock at
10:10 a.m., “we found that our cell had been opened and some items were missing.”
Brady noted “C/O Askew has a habit of not deadlocking cell doors and opening all cell
doors when the block is called to chow which is after we go to work.”
         {¶ 4} 4)   Plaintiff submitted a copy of an “Inmate Property/Theft Report” (Theft
Report) that was filed incident to his reporting the theft.     According to information
contained in the Theft Report, LeCI employee Officer Steel “conducted several cell
searches” after 10:05 a.m. on June 30, 2009. Officer A. Baker, the LeCI employee who
compiled the Theft Report, recorded Officer Askew “denied letting anyone into the cell,
except for Brady who was there.”
         {¶ 5} 5)   Defendant denied liability in this matter contending plaintiff “offered
no specific proof regarding his allegations that the corrections officer let another inmate
into his cell.” Defendant advised that the LeCI employees on duty were interviewed and
they denied opening the cell door at 1-B-16. The employees on duty were identified as
Officer Imfield and Officer Askew. Defendant did not submit any statements from either
Officer Imfield or Officer Askew. Defendant referenced a “report from LeCI Inspector of
Institutional Services” regarding the instant action (copy submitted).       According to
information in the report, “Officer Imfield stated he did deadlock Inmate’s Nolde’s cell
door and did not see it open until Inmate Nolde and his cellmate returned.” Additionally,
the inspector, Dan Hudson, noted in the report that “Officer Askew stated she did not
open the cell door for anyone other than Inmate Nolde and his cellmate.” Defendant
argued that plaintiff failed to prove his cell door was unlocked by any LeCI employee,
thereby facilitating a theft. Defendant denied the cell door was opened by any LeCI
staff.
         {¶ 6} 6)    Plaintiff filed a response insisting his cell door was improperly opened
by defendant’s employee; an act that allowed an unidentified individual access to the
property stored inside. Plaintiff acknowledged he can offer no specific proof his cell
door was opened by defendant’s employee. Plaintiff contended defendant failed to
conduct a proper investigation after the theft was reported.
                                 CONCLUSIONS OF LAW
         {¶ 7} 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.
         {¶ 8} 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,¶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} 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.
         {¶ 10} 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.
         {¶ 11} 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.
       {¶ 12} 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.
       {¶ 13} 7)   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 as well as the assertions of Dale (Dean)
Barnett #579-143 and David Brady.
       {¶ 14} 8)   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 or ordinary or reasonable care. Williams.
       {¶ 15} 9)   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.
       {¶ 16} 10) Defendant, when it retains control over whether an inmate’s cell door
is to be open or closed, owes a duty of reasonable care to inmates who are exclusively
forced to store their possession in the cell while they are absent from the cell. Smith v.
Rehabilitation and Correction (1978), 77-0440-AD.
       {¶ 17} 11) However, in the instant claim, plaintiff has failed to prove defendant
negligently or intentionally unlocked his cell door, and therefore, no liability shall attach
to defendant as a result of any theft based on this contention. Carrithers v. Southern
Ohio Correctional Facility (2002), 2001-09079-AD.
       {¶ 18} 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.
       {¶ 19} 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.
       {¶ 20} 14) Plaintiff has failed to prove, by a preponderance of the evidence, that
defendant was negligent in respect to making any attempts to recover distinguishable or
indistinguishable stolen property. See Williams v. Dept. of Rehab. & Corr., Ct. of Cl. No.
2005-11094-AD, 2006-Ohio-7207.
       {¶ 21} 15) Plaintiff has failed to prove, by a preponderance of the evidence, that
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 NOLDE

      Plaintiff

      v.

LEBANON CORRECTIONAL INSTITUTION

      Defendant

       Case No. 2010-02812-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 Nolde, #404-985                            Gregory C. Trout, Chief Counsel
3791 State Route #63                              Department of Rehabilitation
Lebanon, Ohio 45036-0056                          and Correction
                                                  770 West Broad Street
                                                  Columbus, Ohio 43222
RDK/laa
6/14
Filed 7/14/10
Sent to S.C. reporter 11/5/10
