[Cite as Heyward v. Ohio Dept. of Rehab. & Corr., 2016-Ohio-1105.]



L. M. HEYWARD                                         Case No. 2015-00069-AD

       Plaintiff                                      Deputy Clerk Daniel R. Borchert

       v.
                                                      MEMORANDUM DECISION
OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION

       Defendant



                                         FINDINGS OF FACT
        {¶1} Plaintiff, L.M. Heyward, an inmate, filed a complaint against defendant, Ohio
Department of Rehabilitation and Correction (“ODRC”), asserting on May 5, 2014, he
mail order purchased five plastic one ounce bottles of Prayer Oil. Plaintiff related in the
past he had made such purchases at defendant’s Ohio State Penitentiary, Southern
Ohio Correctional Facility, Warren Correctional Institution, and Mansfield Correctional
Institution and received his purchases without incident. However, now that he was
incarcerated at defendant’s Allen Oakwood Correctional Institution (“AOCI”), upon
receipt of the Prayer Oil they were confiscated.
        {¶2} Plaintiff asserted on August 28, 2014, he was taken to segregation and he
was not given the opportunity to pack-up his property. Plaintiff contended defendant’s
agent Mrs. D. Ward unlocked his cell and allowed several inmates to pack-up and
transport his property unescorted to the segregation vault. Plaintiff argued he became
aware that some of his property was missing but he was not allowed to conduct an
inventory and no search for his missing property was conducted.
        {¶3} Plaintiff related on September 7, 2014, while still in segregation, he was
notified that unspecified inmates had turned some of his property to Unit 3-B Cell Block,
Ms. C.L. Dyer. This property was allowed to be transported to the segregation vault by
another inmate, however, this property was subsequently stolen.
Case No. 2015-00069-AD                       -2-                   MEMORANDUM DECISION


       {¶4} Plaintiff related the following property items and their values were lost or
stolen due to defendant’s negligence:
       {¶5}




       {¶6} Plaintiff was not required to submit the filing fee.
       {¶7} Defendant submitted an investigation report. With respect to the five bottles
of Prayer Oil, defendant related that they were given to plaintiff and accordingly, this
claim should be dismissed.
       {¶8} Defendant admitted liability for the loss of one monster cable, one pair of
black all-pro shades, the Prisoner Self Help Litigation Manuel 4th Edition, a hot pot,
Yamaha FC4 universal sustain pedal, and a television.               Plaintiff was instructed to
provide ownership documentation for these items, but due to plaintiff’s inability to
provide the requested documentation no reimbursement was made.                      Defendant
contended the other items listed in plaintiff’s complaint never came into ODRC’s
possession.
       {¶9} Defendant submitted an Inter-Office Communication dated April 10, 2015,
which in pertinent part stated:




       {¶10}
Case No. 2015-00069-AD                   -3-             MEMORANDUM DECISION




       {¶11} Defendant filed a Disposition of Grievance dated November 6, 2014, which
in pertinent part stated:




       {¶12}
Case No. 2015-00069-AD                       -4-               MEMORANDUM DECISION




       {¶13} Plaintiff filed a response to defendant’s investigation report. Plaintiff relates
how he was taken from his cell and provided affidavits from fellow inmates who
substantiate plaintiff’s allegations. Plaintiff submitted a Disposition of Grievance dated
July 14, 2014, which in pertinent part stated:
       {¶14}




       {¶15} Plaintiff submitted a commissary receipt from Warren Correctional
Institution dated January 4, 2012, which indicated that he purchased a hot pot in the
amount of $12.92. A receipt from Musician’s Friend dated April 1, 2011, which revealed
the receipt of an Advantage Series ¼” straight instrument cable for $7.99, a letter from
Smith Corona dated November 25, 2014, which stated the cost of repair of his
typewriter is $274.00; a price list which stated the cost of the Prisoner’s Self-Help
Litigation Manuel is $45.95, and a price list listing the cost of a Yamaha FC4 Keyboard
Sustain Pedal, at $22.95. Plaintiff also included a list of cases pending at the Court of
Claims, however if plaintiff requests copies of these cases from the Court of Claims they
will be supplied to him at no cost. Finally, plaintiff submitted a copy of an Inmate
Property Record dated August 26, 2013, which revealed he possessed a television,
sunglasses, a clip-on lamp, a cable, hot pot and Yamaha foot pedal.
                                        CONCLUSIONS OF LAW
Case No. 2015-00069-AD                      -5-               MEMORANDUM DECISION


       {¶16} In order to prevail, in a claim of negligence, plaintiff must prove, by a
preponderance of the evidence, that defendant owed him a duty, that it 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., 15 Ohio St. 3d 75, 77, 472 N.E.2d 707 (1984).
       {¶17} “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, 798 N.E.2d 1121,
¶41 (2nd Dist.), citing Miller v. Paulson, 97 Ohio App. 3d 217, 221, 646 N.E.2d 521
(10th Dist. 1994); Mussivand v. David, 45 Ohio St. 3d 314, 318, 544 N.E.2d 265 (1989).
       {¶18} This court in Mullett v. Department of Correction, 76-0292-AD (1976), 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.
       {¶19} 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, 76-0368-AD (1979).
       {¶20} 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, 85-01546-AD
(1985).
       {¶21} Defendant has a duty to use ordinary care in packing or storing property
even if it is due to disciplinary confinement. Gray v. Department of Rehabilitation and
Correction, 84-01577-AD jud (1985).
       {¶22} “When prison authorities obtain possession of an inmate’s property, a
bailment relationship arises between the correctional facility and the inmate. Buhrow v.
Department of Rehabilitation and Correction, 85-01562-AD, unreported. ‘A bailment is
Case No. 2015-00069-AD                      -6-               MEMORANDUM DECISION


defined as a delivery of something***by one party to another, to be held according to the
purpose or object of the delivery, and to be returned***when that purpose is
accomplished.’ (Footnotes omitted.) 8 Ohio Jurisprudence 3d (1978), 401, Bailments,
Section 2.”    Bacote v. Ohio Department of Rehabilitation and Correction, 61 Ohio
Misc.2d 284, 578 N.E.2d 565 (Ct. of Cl. 1988). A bailment relationship was created
when ODRC’s agent took possession of plaintiff’s property after he was taken to
segregation.
         {¶23} 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, 78-0217-AD (1978). In this case defendant was
negligent since inmates were allowed to transport plaintiff’s property to the segregation
vault unescorted. Furthermore, inmates turned some of plaintiff’s missing property in,
evidencing that no supervision was provided when plaintiff’s property was transported to
the vault. Therefore, defendant is responsible since it took control of plaintiff’s property
establishing a bailment relationship.        See Moralievitz v. Ohio Department of
Rehabilitation and Correction, 2014-00836-AD (2015).
         {¶24} Negligence on the part of defendant has been shown in respect to the
issue of property protection. Billups v. Department of Rehabilitation and Correction,
2000-10634-AD (2001).
         {¶25} The standard measure of damages for personal property loss is market
value.    McDonald v. Ohio State Univ. Veterinary Hosp., 67 Ohio Misc. 2d 40, 644
N.E.2d 750 (Ct. of Cl. 1994).
         {¶26} As trier of fact, this court has the power to award reasonable damages
based on evidence presented. Sims v. Southern Ohio Correctional Facility, 61 Ohio
Misc. 2d 239, 577 N.E.2d 160 (Ct. of Cl. 1988).
         {¶27} Damage assessment is a matter within the function of the trier of fact.
Litchfield v. Morris, 25 Ohio App.3d 42, 495 N.E.2d 462 (10th Dist. 1985). Reasonable
Case No. 2015-00069-AD                       -7-               MEMORANDUM DECISION


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,
102 Ohio App. 3d 782, 658 N.E.2d 31 (12th Dist. 1995). This court finds the following
property items and their value was lost, stolen, or damaged as the result of defendant’s
negligence: Prisoner Self-Help Litigation Manuel, $45.95; hot pot, $12.92; television
damage, $214.95; Yamaha FC4 sustain pedal, $22.95; 5’ monster instrument cable,
$7.99; a pair of black pro shades sunglasses, $8.00; clip-on lamp, $18.50; and
typewriter repair $274.00.
       {¶28} The Supreme Court of Ohio has held that “[t]he language in R.C. 2743.02
that ‘the state’ shall ‘have its liability determined***in accordance with the same rules of
law applicable to suits between private parties***’ means that the state cannot be sued
for its legislative or judicial functions or the exercise of an executive or planning function
involving the making of basic policy decision which is characterized by the exercise of a
high degree of official judgment or discretion.” Reynolds v. State, 14 Ohio St. 3d 68, 70,
471 N.E.2d 776 (1984); see also Von Hoene V. State, 20 Ohio App. 3d 363, 364, 486
N.E.2d 868 (1st Dist. 1985).       “Prison administrations are provided ‘wide ranging’
deference in the adoption and execution of policies and practices that in their judgment
are needed to preserve internal order and discipline and to maintain institution security.”
Bell v. Wolfish, 441 U.S. 520, 547, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979).
Accordingly, plaintiff has not stated a cause of action based upon ODRC’s policy at
AOCI to allow plaintiff to possess one bottle of prayer oil at a time.
       {¶29} Accordingly, plaintiff is granted damages in the amount of $605.26, plus the
$25.00 filing fee, which may be reimbursed a compensable damages pursuant to the
holding of Bailey v. Ohio Department of Rehabilitation and Correction, 62 Ohio Misc.2d
19, 587 N.E.2d 990 (Ct. of Cl. 1990).
Case No. 2015-00069-AD                       -8-              MEMORANDUM DECISION




L. M. HEYWARD                                 Case No. 2015-00069-AD

         Plaintiff                            Deputy Clerk Daniel R. Borchert

         v.
                                              ENTRY OF ADMINISTRATIVE
OHIO DEPARTMENT OF                            DETERMINATION
REHABILITATION AND CORRECTION

         Defendant



         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 $630.26, which includes the filing fee. Court costs are
assessed against defendant.




                                               DANIEL R. BORCHERT
                                               Deputy Clerk

Entry cc:
L. M. Heyward, #A252-187                    Stephen Gray, Chief Counsel
Allen Correctional Institution              Ohio Dept. of Rehabilitation and Correction
P.O. Box 4501                               770 West Broad Street
Lima, Ohio 45802                            Columbus, Ohio 43222


Filed 2/5/16
Sent to S.C. Reporter 3/18/16
