[Cite as Hughley v. Southeastern Correctional Ins., 2010-Ohio-2182.]

                                      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




KEVIN HUGHLEY

       Plaintiff

       v.

SOUTHEASTERN CORRECTIONAL INST.

       Defendant

        Case No. 2009-05668-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                         FINDINGS OF FACT
        {¶ 1} 1)       Plaintiff, Kevin Hughley, a former inmate who was incarcerated at
defendant, Southeastern Correctional Institution (SCI), filed this claim alleging three
separate causes of action against defendant essentially involving property loss. The
claims totaling $117.00 in damages requested shall be addressed in the order plaintiff
listed in his original complaint. Payment of the $25.00 filing fee was waived.
        {¶ 2} 2)       Plaintiff recalled he was transferred from the SCI general population
to a segregation unit on or about May 27, 2009.                        Plaintiff’s personal property was
inventoried, packed, and delivered into the custody of SCI staff incident to this transfer.
Plaintiff asserted he was permitted to examine a copy of his property inventory on May
28, 2009 and discovered a pair of Riddell basketball shoes, two pairs of shorts, two t-
shirts, and various commissary items were not listed and presumedly had not been
packed. Plaintiff explained he was not present during the time his property was packed
due to the fact he “was on Suicide Watch” status. Plaintiff implied the shoes, shorts, t-
shirts, and commissary items were lost or stolen as a proximate cause of negligence on
the part of SCI personnel in failing to conduct a proper pack-up. Plaintiff requested
damage recovery in the amount of $65.00 for the alleged missing items.             Plaintiff
submitted documentation he received shoes, shorts and t-shirts in January 2009.
       {¶ 3} 3)    In a completely different matter, plaintiff pointed out he was issued a
conduct report for contraband possession “in the second week of May, 2009.” Plaintiff
provided a copy of a “Contraband Control Slip” dated May 15, 2009 that noted several
items of personal property were confiscated from plaintiff’s possession by an SCI
employee. The confiscated items included “2 boxes Star Crunch, 6 Faygo red pop, 3
razors, 1 Magic Chip, 1 bottle pizza sauce, 1 bbq chips, 2 Honey Bun, 1 Kroger chip, 1
stick coca butter, 1 hot chili, 1 pkg (pepperoni), 1 pack Tortilla.” Plaintiff advised the
items consisting mostly of foodstuffs were confiscated, despite the fact he “produced
receipts for ½ the items (and) had proof of other items taken.” Plaintiff maintained the
confiscated items were never returned and he has claimed damages in the amount of
$26.00 for the loss. Plaintiff did not submit any proof of purchase or other indicia of
ownership of the confiscated property.
       {¶ 4} 4)    In another matter, plaintiff explained he was issued State Pay in
March and June 2009 which was deposited in his inmate account. Plaintiff further
explained that portions of his State Pay funds for March and June 2009 were withdrawn
from his account to pay for postage and copying expenses he incurred in June and
August 2008. Plaintiff noted that because of the amount of funds withdrawn from his
account he was left with an insufficient account balance to purchase personal hygiene
items. Plaintiff essentially contended defendant wrongfully collected $26.00 from his
inmate account to pay for postage and copying debts. Plaintiff asserted defendant had
previously agreed to not use his State Pay funds to satisfy outstanding debts he owed.
       {¶ 5} 5)    Defendant denied liability on all three claims. Defendant asserted the
clothing items plaintiff claimed were not among his packed property on May 27, 2009
were not in plaintiff’s possession at the time his property was packed incident to his
transfer to segregation. Defendant acknowledged plaintiff ordered the clothing items
from a vendor prior “to being placed in disciplinary segregation” and the items arrived at
SCI after plaintiff was transferred to a segregation unit. Defendant offered that plaintiff
“intended to get new tennis shoes and shorts before he reported his old ones misplaced
by” SCI personnel. Defendant related that once plaintiff “was placed in segregation he
knew that his package containing his new shoes and shorts would be sent back to the
vendor supplier.” The order for new shoes and shorts was placed by plaintiff on May
26, 2009 and received at ASCI on June 2, 2009. The shorts and shoes received on
June 2, 2009 were returned to the vendor due to plaintiff being assigned to segregation.
Apparently, the shoes and shorts were reordered and sent to SCI on July 8, 2009.
Neither defendant nor plaintiff submitted a copy of plaintiff’s property inventory for May
27, 2009; compiled when his property was packed incident to his transfer to
segregation. From the evidence available the trier of fact presumes the shoes, shorts,
and t-shirts plaintiff received in January 2009 were not packed by SCI staff when
plaintiff was transferred to segregation on May 27, 2009.          There is no evidence
presented to show the shoes, shorts, and t-shirts plaintiff received from a vendor in
January 2009 were actually in his possession on May 27, 2009 and therefore, subject
to being packed.
      {¶ 6} 6)     In reference to plaintiff’s second claim alleging improper confiscation
of his commissary items, defendant has acknowledged property in plaintiff’s possession
was confiscated on May 15, 2009 and plaintiff was issued a “Conduct Report” (copy
submitted) for possession of contraband.        Defendant denied any SCI staff acted
improperly in confiscating property from plaintiff. Defendant stated “[p]laintiff failed to
provide proper information for the claim to be further investigated, thus the property was
entitled to be destroyed.” According to the May 15, 2009 “Conduct Report” plaintiff was
observed on that date walking out of the SCI F1 South dormitory housing unit where he
did not reside carrying a bag of commissary items. Plaintiff was stopped, the bag he
was carrying was searched and approximately twenty-six commissary items were
confiscated.   According to the “Conduct Report,” plaintiff produced a receipt for
approximately seven items, but could not provide proof of ownership for the remaining
items found in the bag he carried out of the F1 South Unit. Noted on the “Conduct
Report” was the advisement that plaintiff’s “receipt was timed at 12:15 pm and he was in
the dorm (F1 South) at 12:21 and he was leaving.” The “Conduct Report” contained the
notation that plaintiff was escorted from the F1 South Unit with his legitimate items
(property listed on the commissary receipt) to his housing unit. The remaining items
were confiscated as contraband. Plaintiff subsequently appeared before defendant’s
Rules Infraction Board (RIB) on May 19, 2009 and the RIB hearing officer found plaintiff
guilty of three internal rule violations. Under the caption “Other Statement/Evidence” in
the RIB “Hearing Officer’s Report” (copy submitted) is the notation, “[t]his inmate
(plaintiff) also stated he was offered the 7 VALID commissary items and HE REFUSED
THEM twice!!!” Apparently all property confiscated from plaintiff on May 15, 2009 was
destroyed as contraband in accordance with defendant’s internal regulations.
       {¶ 7} 6)    In regard to plaintiff’s third claim, defendant asserted “[p]laintiff has
failed to demonstrate when monies were wrongfully confiscated from his prison
account.” Defendant contended plaintiff failed to offer proof any funds were wrongfully
collected from his inmate account to pay for postage, court costs, and copying fees.
       {¶ 8} 7)    Plaintiff filed a response initially asserting defendant failed to conduct
a proper pack up incident to his transfer to segregation in May 2009. Plaintiff contended
defendant failed to pack his shoes, shorts and t-shirts that he already had in his
possession when he was transferred to segregation. Additionally, plaintiff explained he
obtained the commissary items that were confiscated as contraband on May 15, 2009
by trading with another inmate; an act specifically proscribed by defendant’s internal
regulations.   Plaintiff related the claim involving funds withdrawn from his inmate
account “can be waived since it is going to be brought up in a district filing in U.S.
Courts pertaining to denying access to the courts in a title 42 claim.”
                                CONCLUSIONS OF LAW
       {¶ 9} 1)    For plaintiff to prevail on a claim of negligence, he must prove, by a
preponderance of the evidence, that defendant owed him a duty, that it breached that
duty, and that the 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. 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. However, “[i]t is the duty of a party on whom the
burden of proof rests to produce evidence which furnishes a reasonable basis for
sustaining his claim. If the evidence so produced furnishes only a basis for a choice
among different possibilities as to any issue in the case, he fails to sustain such
burden.” Paragraph three of the syllabus in Steven v. Indus. Comm. (1945), 145 Ohio
St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and followed.
       {¶ 10} 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.
       {¶ 11} 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.
       {¶ 12} 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.
       {¶ 13} 5) 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
       {¶ 14} 6) In order to recover against a defendant in a tort action, plaintiff must
produce evidence which furnishes a reasonable basis for sustaining his claim. If his
evidence furnishes a basis for only a guess among different possibilities, as to any issue
in the case, he fails to sustain the burden as to such issue. Landon v. Lee Motors, Inc.
(1954), 161 Ohio St. 82, 53 O.O. 25, 118 N.E. 2d 147.
       {¶ 15} 7) Plaintiff failed to prove he actually delivered a pair of shoes, shorts, t-
shirts, and commissary items into defendant’s custody and control on May 27, 2009.
Plaintiff’s failure to prove delivery of the above listed 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.
       {¶ 16} 8) 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.
       {¶ 17} 9) Plaintiff has failed to prove, by a preponderance of the evidence, any
of his property items were lost, discarded or stolen as a proximate result of any
negligent conduct attributable to defendant. Fitzgerald v. Department of Rehabilitation
and Correction (1998), 97-10146-AD. Plaintiff’s claim for property loss in connection
with his May 27, 2009 transfer is denied.
       {¶ 18} 10) This court has previously held that property in an inmate’s possession
which cannot be validated by proper indicia of ownership is contraband and
consequently, no recovery is permitted when such property is confiscated. Wheaton v.
Department of Rehabilitation and Correction (1988), 88-04899-AD.
       {¶ 19} 11) An inmate plaintiff is barred from pursuing a claim for the loss of use of
restricted property when such property is declared impermissible pursuant to
departmental policy. Zerla v. Dept. of Rehab. and Corr. (2001), 2000-09849-AD.
       {¶ 20} 12) Plaintiff has no right to pursue a claim for destroyed property in which
he cannot prove any right of ownership. DeLong v. Department of Rehabilitation and
Correction (1988), 88-06000-AD.         Defendant cannot be held liable for contraband
property that plaintiff has no right to possess.              Beaverson v. Department of
Rehabilitation and Correction (1988), 87-02540-AD; Radford v. Department of
Rehabilitation and Correction (1985), 84-09071.          Evidence has shown the property
confiscated from plaintiff on May 15, 2009 was obtained through improper means,
impermissible due to its nature, and consequently, plaintiff has no right of ownership.
Therefore, the claim for the property confiscated from plaintiff on May 15, 2009 is
denied.
       {¶ 21} 13) Plaintiff’s third claim is based on defendant’s alleged failure to make a
proper accounting of state pay deductions to be applied to the balance of debts owed.
Defendant has discretion to make decisions regarding inmate pay. State pay loss is not
a compensable element of damages in regard to prisoners. See Cotten v. Dept. of
Rehab. and Corr. (1993), 92-02013-AD, jud; Platz v. Noble Correctional Institution
(2001), 2001-02210-AD; Myers v. Southern Ohio Correctional Facility (2006), 2005-
10063-AD, jud; Johns v. Dept. of Rehab. & Corr., Ct. of Cl. No. 2006-07724-AD, 2007-
Ohio-3748; Thayer v. Ohio State Penitentiary, Ct. of Cl. No. 2007-06730-AD, 2008-
Ohio-3417.
       {¶ 22} 14) Alternatively, considering defendant’s acts could be construed as a
wrongful collection of plaintiff’s funds, plaintiff could still not prevail. Plaintiff is seeking
to recover funds he asserted were wrongfully withheld; the funds sought for recover
represents a claim for equitable relief and not money damages. Consequently, this
court at the Administrative Determination level has no jurisdiction over claims grounded
in equity based on the wrongful collection of funds from an inmate account.                See
Flanagan v. Ohio Victims of Crime Fund, Ct. of Cl. No. 2003-01893-AD, 2004-Ohio-
1842; also Blake v. Ohio Attorney General’s Office, Ct. of Cl. No. 2004-06089-AD,
2004-Ohio-5420; and Johnson v. Trumbull Corr. Inst., Ct. of Cl. No. 2004-08375-AD,
jud, 2005-Ohio-1241; Thayer.      Plaintiff’s claim involving deductions from his inmate
account is denied.




                               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




KEVIN HUGHLEY

      Plaintiff

      v.

SOUTHEASTERN CORRECTIONAL INST.

      Defendant

      Case No. 2009-05668-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:

Kevin Hughley, #0171385                         Gregory C. Trout, Chief Counsel
P.O. Box 5660                                   Department of Rehabilitation
Cleveland, Ohio 44101                           and Correction
                                                770 West Broad Street
                                                Columbus, Ohio 43222
RDK/laa
1/22
Filed 2/4/10
Sent to S.C. reporter 5/14/10
