[Cite as Brown v. Lebanon Correctional Inst., 2010-Ohio-4024.]

                                      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




JEFFREY A. BROWN, SR.

       Plaintiff

       v.

LEBANON CORRECTIONAL INST.

       Defendant

        Case No. 2009-06915-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



                                         FINDINGS OF FACT
        {¶ 1} 1)       Plaintiff, Jeffrey A. Brown, an inmate who was formerly incarcerated
at defendant, Lebanon Correctional Institution (LeCI), filed this action alleging that his
personal property was either damaged, stolen, discarded, or lost as a proximate cause
of negligence on the part of LeCI staff. Initially, plaintiff claimed that on or about August
19, 2008, his television set was broken by another inmate who gained access to his cell
from his cellmate.         Plaintiff explained that he, his cellmate, and the inmate who
damaged his television set, were all transferred to segregation pending an investigation
of the destruction of the television set. Plaintiff noted that when he was transferred to
segregation, LeCI personnel intentionally discarded his legal papers and other property.
Plaintiff recalled that he was permitted to return to his cell later in the day on August 19,
2008 to retrieve his property left there and discovered that his blue sweat shirt and
chess set were missing. Additionally, plaintiff asserted that other property items were
either discarded or lost incident to his transfer to segregation. According to plaintiff, the
additional missing property included two packs of batteries, one sewing kit, three
toothbrushes, three t-shirts, one deodorant, one cocoa butter lotion, one Bible, one
brown concordance, cassette tapes, three bars of soap, one mirror, two television
antennas, and one blanket. Plaintiff seeks damage recovery in the amount of $804.50,
the stated replacement value of his alleged missing and damaged property. Payment of
the filing fee was waived.
       {¶ 2} 2)    Defendant denied liability in this matter contending that plaintiff failed
to produce evidence to establish “that the destruction of his television was due to the
negligence of Defendant.”      Also, defendant asserted that plaintiff “has provided no
evidence that Defendant wrongfully destroyed legal materials.”          Defendant did not
address plaintiff’s claim concerning the loss of additional property listed in his complaint.
Defendant explained that plaintiff was transferred to segregation on August 19, 2008
“because he pulled a weapon out on an inmate who had intentionally broken his
television.” According to submitted records, plaintiff’s property was packed on August
20, 2008 by LeCI staff and plaintiff’s printed signature appears on the “Inmate Property
Record” acknowledging this record as a “complete and accurate inventory” of all his
personal property. None of the property items claimed by plaintiff appear on the August
20, 2008 “Inmate Property Record.”          Defendant maintained that plaintiff did not
complain about discarded legal materials or other missing property at the time his
property was packed. Defendant acknowledged that some of plaintiff’s property was
discarded by LeCI staff at the time that the items were packed on August 20, 2008.
Defendant submitted a written statement from LeCI employee, Sgt. K. Boothe, who
assisted in the inventory of plaintiff’s property along with discarding some items. Boothe
noted that plaintiff was present at the time of the pack-up and “[n]o personal property
was discarded with out the approval of Inmate Brown and an authorization to dispose of
personal property DRC 4219 was signed by Inmate Brown.” Defendant did not provide
a copy of the signed authorization (DRC 4219).           Defendant related that plaintiff’s
property items were discarded due to the fact that he possessed property in excess of
the volume possession limits set by internal regulations. Defendant argued that plaintiff
has failed to prove his television set was damaged as a proximate cause of negligence
on the part of LeCI personnel and that he has failed to prove any of his property was
discarded without proper authority.
       {¶ 3} 3)    Plaintiff filed a response insisting that he did not authorize the
destruction of his legal materials or other property items.           Furthermore, plaintiff
contended that defendant should bear liability for the destruction of his television set by
failing to provide adequate protection for his property. Plaintiff maintained that the LeCI
personnel responsible for packing his property on August 20, 2008 ignored his request
to not discard his legal papers and instead escorted him to an isolation unit so he “could
no longer be present with the pack up of my property.” Plaintiff claimed that his property
was thrown away by LeCI personnel as an act of retaliation against him. Also, plaintiff
claimed that defendant supplied fraudulent documentation to support assertions that
plaintiff authorized the destruction of his property.
                                 CONCLUSIONS OF LAW
       {¶ 4} 1)      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.
       {¶ 5} 2)      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.
       {¶ 6} 3)      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.
       {¶ 7} 4)      Plaintiff must produce evidence which affords a reasonable basis
for the conclusion that 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.
       {¶ 8} 5)      Defendant is not responsible for actions of other 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; Melson v. Ohio Department of
Rehabilitation and Correction (2003), Ct. of Cl. No. 2003-04236-AD, 2003-Ohio-3615;
Jenkins v. Richland Correctional Inst., Ct. of Cl. No. 2003-01768, 2003-Ohio-4483.
       {¶ 9} 6)      In order to prevail, plaintiff must prove, by a preponderance of the
evidence, that defendant owned 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.
      {¶ 10} 7)   “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, 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.
      {¶ 11} 8)   Ohio law imposes a duty of reasonable care upon the state to provide
for its prisoners’ health, care, and well-being. Clemets v. Heston (1985), 20 Ohio App.
3d 132, 136, 20 OBR 166, 485 N.E. 2d 287. Reasonable or ordinary care is that degree
of caution and foresight which an ordinarily prudent person would employ in similar
circumstances. Smith v. United Properties, Inc. (1965), 2 Ohio St.2d 310, 31 O.O. 2d
573, 209 N.E. 2d 142.
      {¶ 12} 9)   Plaintiff has failed to show any causal connection between the
damages to his television set and any breach of a duty owed by defendant in regard to
protecting inmate property. Druckenmiller v. Mansfield Correctional Inst. (1998), 97-
11819-AD; Tomblin v. London Correctional Inst., Ct. of Cl. No. 2005-03431-AD, 2005-
Ohio-4859; Madden v. Lebanon Correctional Inst., Ct. of Cl. No. 2006-06116-AD-AD;
jud, 2007-Ohio-1928; Tolbert v. Lebanon Correctional Inst., Ct. of Cl. No. 2007-06942-
AD, 2008-Ohio-5152.
      {¶ 13} 10) Plaintiff has failed to prove, by a preponderance of the evidence, that
any of his property was lost or stolen 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.
      {¶ 14} 10) 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.
      {¶ 15} 11) It has been previously held, an inmate plaintiff may recover the value
of confiscated property destroyed by agents of defendant when those agents acted
without authority or right to carry out the property destruction.     Berg v. Belmont
Correctional Institution (1998), 97-09261-AD. However, plaintiff must prove defendant’s
personnel acted without any authorization.
       {¶ 16} 12) 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 not particularly persuasive in regard to the fact he did not authorize the
destruction of his legal material and other property.
       {¶ 17} 13) Assuming defendant’s staff acted maliciously and without authority in
discarding plaintiff’s property, such actions would be manifestly outside the course and
scope of employment. It is only where the acts of state employees are motivated by
actual malice or other such reasons giving rise to punitive damages that their conduct
may be outside the scope of their state employment. James H. v. Dept. of Mental
Health and Mental Retardation (1980), 1 Ohio App. 3d 60, 61, 1 OBR 6, 439 N.E. 2d
437. The act must be so divergent that it severs the employer-employee relationship.
Elliott v. Ohio Dept. of Rehab. & Corr. (1994), 92 Ohio App. 3d 772, 775, 637 N.E. 2d
106, citing Thomas v. Ohio Dept. of Rehab. & Corr. (1988), 48 Ohio App. 3d 86, 89, 548
N.E. 2d 991, and Peppers v. Ohio Dept. of Rehab. & Corr. (1988), 50 Ohio App. 3d 87,
90, 533 N.E. 2d 1093.
       {¶ 18} 14) Malicious purpose encompasses exercising “malice,” which can be
defined as the willful and intentional design to do injury, or the intention to desire to
harm another, usually seriously, through conduct that is unlawful or unjustified. Jackson
v. Butler Cty. Bd. of Cty. Commrs. (1991), 76 Ohio App. 3d 448, 453-454, 602 N.E. 2d
363, citing Teramano v. Teramano (1966), 6 Ohio St. 2d 117, 118, 35 O.O. 2d 144, 216
N.E. 2d 375; and Bush v. Kelly’s Inc. (1969), 18 Ohio St. 2d 89, 47 O.O. 2d 238, 247
N.E. 2d 745.
       {¶ 19} 15) The Supreme Court of Ohio has established that an employer is
liable for the tortious conduct of its employee only if the conduct is committed within the
scope of employment and if the tort is intentional, the conduct giving rise to the tort must
facilitate or promote the business of which the employee was engaged. Byrd v. Faber
(1991), 57 Ohio St. 3d 56, 565 N.E. 2d 584, citing Little Miami RR. Co. v. Wetmore
(1869), 19 Ohio St. 110, and Taylor v. Doctors Hosp. (1985), 21 Ohio App. 3d 154, 21
OBR 165, 486 N.E. 2d 249.
      {¶ 20} 16) Further, an intentional and willful tort committed by an employee for
his own purposes constitutes a departure from the employment, so that the employer is
not responsible. Szydlowski v. Ohio Dept. of Rehab. & Corr. (1992), 79 Ohio App. 3d
303, 607 N.E. 2d 103, citing Vrabel v. Acri (1952), 156 Ohio St. 467, 46 O.O. 387, 103
N.E. 2d 564. The facts of this case, taken as plaintiff asserted, would constitute an
intentional tort committed by defendant’s employees performed for their own personal
purpose. Following this rationale, plaintiff cannot maintain a cause of action against
defendant for the intentional malicious act of its employees.




                               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




JEFFREY A. BROWN, SR.

      Plaintiff

      v.

LEBANON CORRECTIONAL INST.

      Defendant

      Case No. 2009-06915-AD

Clerk Miles C. Durfey


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.



                                                ________________________________
                                                MILES C. DURFEY
                                                Clerk

Entry cc:

Jeffrey A. Brown, Sr., #477-552                 Gregory C. Trout, Chief Counsel
P.O. Box 788                                    Department of Rehabilitation
Mansfield, Ohio 44901                           and Correction
                                                770 West Broad Street
                                                Columbus, Ohio 43222
RDK/laa
3/17
Filed 4/23/10
Sent to S.C. reporter 8/26/10
