[Cite as Hancock v. Ohio State Penitentiary, 2010-Ohio-6685.]

                                      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




CHRISTOPHER L. HANCOCK

       Plaintiff

       v.

OHIO STATE PENITENTIARY

       Defendant

        Case No. 2010-07504-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION


                                         FINDINGS OF FACT
        {¶ 1} 1)       Plaintiff, Christopher L. Hancock, an inmate incarcerated at
defendant, Ohio State Penitentiary (OSP), filed this action alleging that a gold cross and
chain intended for him was lost as a proximate cause of negligence on the part of OSP
mailroom personnel in handling mail delivered by the United State Postal Service
(USPS). Plaintiff related that his grandmother purchased a gold cross and chain and
arranged for the seller to mail the item through the USPS to OSP where it was received
on February 16, 2010.           Plaintiff further related that the described jewelry item was
insured and when it was received at OSP a mailroom employee identified as “Officer
Stradrick” signed for the necklace and cross pendant on February 16, 2010 at 9:30 a.m.
Plaintiff claimed that the gold chain with attached cross was never forwarded to his
possession after it was received at the OSP mailroom. Plaintiff seeks damage recovery
in the amount of $433.01, the total stated purchase price of the jewelry, plus insurance
cost. Plaintiff submitted documentation confirming his damage claim amount. Plaintiff
submitted documentation from the USPS confirming a parcel addressed to him was
received at the OSP mailroom and delivered to OSP personnel. The filing fee was paid.
       {¶ 2} 2)    Defendant acknowledged that OSP personnel picked up mail for
inmates at the local post office on February 16, 2010. Defendant explained that the
procedure involved for mail pick up advising that “post office staff brought out the bin of
mail which was loaded in a vehicle and transported to” OSP. Defendant maintained that
when the mail transported from the post office to OSP was sorted, “there was no
necklace or cross located in the incoming mail.”         Defendant noted that the OSP
employee who sorted the mail denied a cross and chain intended for plaintiff was
among the mail sorted on February 16, 2010. The claim file is devoid of any statement
of any type from the OSP employee who handled incoming inmate mail on February 16,
2010. Defendant did not identify the OSP employee who sorted mail on February 16,
2010. Defendant contended that plaintiff failed to produce sufficient evidence to prove
his cross and chain jewelry item was lost or stolen while under the control of OSP
personnel.   Defendant asserted that evidence is inconclusive to establish whether
plaintiff’s jewelry was lost or stolen while under the control of the USPS or OSP.
       {¶ 3} 3)    Plaintiff filed a response insisting that his mailed jewelry item was lost
or stolen while under the control of OSP staff. Plaintiff pointed out that his submitted
documentation shows that “an OSP staff member did in fact sign for the necklace and
cross.” Plaintiff asserted that he has produced sufficient evidence to prove his property
item was lost or stolen while under the control of defendant. The trier of fact agrees.
                                CONCLUSIONS OF LAW
       {¶ 4} 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.
       {¶ 5} 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.
       {¶ 6} 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.
      {¶ 7} 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 recovery” such property.
      {¶ 8} 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.
      {¶ 9} 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.
       {¶ 10} 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 finds plaintiff’s
assertions persuasive concerning the loss of his property. Conversely, the court does
not find defendant’s assertions credible regarding its denial plaintiff’s property was
delivered into the custody of OSP staff.
       {¶ 11} 8)   Negligence on the part of defendant has been shown in respect to
the issue of property protection. Billups v. Department of Rehabilitation and Correction
(2001), 2000-10634-AD. Consequently, defendant is liable to plaintiff for the damages
claimed, $433.01, plus the $25.00 filing fee which may be reimbursed as compensable
costs pursuant to R.C. 2335.19. See Bailey v. Ohio Department of Rehabilitation and
Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.


                               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
CHRISTOPHER L. HANCOCK

        Plaintiff

        v.

OHIO STATE PENITENTIARY

        Defendant

         Case No. 2010-07504-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 plaintiff in the amount of $458.01, which includes the filing fee. Court costs are
assessed against defendant.




                                           MILES C. DURFEY
                                           Clerk

Entry cc:

Christopher L. Hancock                     Gregory C. Trout, Chief Counsel
878 Coitsville-Hubbard Road                Department of Rehabilitation
Youngstown, Ohio 44505                     and Correction
                                           770 West Broad Street
                                           Columbus, Ohio 43222
RDK/laa
12/9
Filed 12/29/10
Sent to S.C. reporter 2/25/11
