[Cite as Blacker v. Warren Correctional Inst., 2010-Ohio-5454.]

                                       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




NATHANIAL C. BLACKER

       Plaintiff

       v.

WARREN CORRECTIONAL INSTITUTION

       Defendant

        Case No. 2009-08853-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)       Plaintiff, Nathaniel C. Blacker, an inmate, filed this action against
defendant, Warren Correctional Institution (WCI), alleging his watch was damaged while
under the control of WCI staff. Additionally, plaintiff claimed twelve books that were in
his possession at the time he transferred from WCI to the Southern Ohio Correctional
Facility (SOCF) were wrongfully withheld from his possession by SOCF personnel in
violation of internal regulations.          On November 28, 2007, plaintiff and his personal
property were transferred from WCI to SOCF. Plaintiff explained that once he arrived at
SOCF he was assigned to a housing unit where he was allowed to possess a minimal
amount of property items while the bulk of his property remained in storage.
        {¶ 2} 2)       Plaintiff recalled he made an inquiry on April 17, 2008 about his
property that was in storage at SOCF. Plaintiff further recalled he was informed at that
time there was only one book that could be found in storage. Plaintiff noted he regained
possession of his book on November 18, 2008.                      Plaintiff contended SOCF staff
persisted in withholding printed material from him and failed to follow internal
administrative procedures in not providing him with adequate reason why the printed
material was withheld from his possession. Furthermore, plaintiff alleged his watch was
broken while in storage and SOCF personnel failed to follow administrative regulations
in investigating the cause of the damage to his watch. Plaintiff filed this complaint
seeking to recover $900.00, the stated value of the eleven withheld books and watch.
Plaintiff asserted, “[t]he Defendant’s actions constitute Fourteenth Amendment Due
Process violations, as secured by the U.S. Constitution, and a commission of the
common law tort of conversion.” Payment of the filing fee was waived.
      {¶ 3} 3)     Defendant denied any liability in this matter.      Initially, defendant
acknowledged plaintiff’s watch is broken. However, defendant contended plaintiff has
failed to provide any evidence to establish the watch was broken while under the control
of either WCI personnel or SOCF staff. Defendant also acknowledged that several
books possessed by plaintiff at WCI were placed in long term storage at SOCF.
Defendant offered the following explanation for retaining the books: “Some have been
left in storage due to their content, which is inappropriate for a maximum security prison.
Some have been left in storage because Plaintiff is would be over his 2.4 cubic feet
property limit if he were to be in possession of them.” Defendant claimed discretionary
immunity in withholding the books from plaintiff’s possession. Defendant argued plaintiff
has failed to offer any evidence to establish liability based on a conversion premise.
      {¶ 4} 4)     Plaintiff filed a response noting he was transferred from SOCF to the
Ross Correctional Institution (RCI) on December 15, 2009, after this complaint was
filed. Plaintiff related he “received no books from long-term storage, as there were none
being held in long term storage at SOCF, upon arrival to RCI on December 15, 2009,
nor since that time.” Plaintiff again asserted SOCF staff failed to follow administrative
rules when dealing with his complaints about the books and watch. Plaintiff insisted his
watch was broken while under the control of either WCI personnel or SOCF personnel.
                                CONCLUSIONS OF LAW
      {¶ 5} 1)     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} 2)     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} 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.
      {¶ 8} 4)     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.
      {¶ 9} 5)     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
essential 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.
      {¶ 10} 6)    Plaintiff has failed to prove a causal connection between the damage
to his watch and any breach of duty owed by defendant in regard to protecting inmate
property. Druckenmiller v. Mansfield Correctional Inst. (1998), 97-11819-AD.
      {¶ 11} 7)    Plaintiff has failed to prove, by a preponderance of the evidence, that
any of his property was damaged as a proximate result of any negligent conduct
attributable to defendant. Fitzgerald v. Department of Rehabilitation and Correction
(1998), 97-10146-AD.
      {¶ 12} 8)    Plaintiff himself filed this claim seeking redress for alleged violations
of his constitutional rights under the Fourteenth Amendment. Accordingly, plaintiff’s
claim, based on alleged violations of his constitutional rights is dismissed. This court
lacks jurisdiction to hear a claim to the extent it asserts constitutional violations.
Gersper v. Ohio Dept. of Hwy. Safety (1994), 95 Ohio App. 3d 1, 641 N.E. 2d 113.
      {¶ 13} 9)    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 a basic policy decision which is characterized
by the exercise of a high degree of official judgment or discretion.” Reynolds v. State
(1984), 14 Ohio St. 3d 68, 70, 14 OBR 506, 471 N.E. 2d 776; see also Von Hoene v.
State (1985), 20 Ohio App. 3d 363, 364, 20 OBR 467, 486 N.E. 2d 868.                         Prison
administrators 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 (1979), 441 U.S. 520, 547,
99 S. Ct. 1861, 60 L. Ed. 2d 447.
       {¶ 14} 10) Prison     regulations,   including   those     contained      in    the    Ohio
Administrative Code, “are primarily designed to guide correctional officials in prison
administration rather than to confer rights on inmates.”           State ex rel. Larkins v.
Wilkinson, 79 Ohio St. 3d 477, 1997-Ohio-139, 683 N.E. 2d 1139, citing Sandin v.
Conner (1995), 515 U.S. 472, 481-482, 115 S. Ct. 2293, 132 L. Ed. 2d 418.
Additionally, this court has held that “even if defendant had violated the Ohio
Administrative Code, no cause of action would exist in this court. A breach of internal
regulations in itself does not constitute negligence.” Williams v. Ohio Dept. of Rehab.
and Corr. (1993), 67 Ohio Misc. 2d 1, 3, 643 N.E. 2d 1182. Accordingly, to the extent
plaintiff alleges that SOCF staff failed to comply with internal prison regulations and the
Ohio Administrative Code, he fails to state a claim for relief.
       {¶ 15} 11) Plaintiff has failed to prove his books were lost or destroyed while
stored at SOCF. See Lister v. London Corr. Inst., Ct. of Cl. No. 2009-06524-AD, 2009-
Ohio-7185.




                                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




NATHANIAL C. BLACKER
        Plaintiff

        v.

WARREN CORRECTIONAL INSTITUTION

        Defendant

         Case No. 2009-08853-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:

Nathanial C. Blacker, #505-996                    Gregory C. Trout, Chief Counsel
P.O. Box 45699                                    Department of Rehabilitation
Lucasville, Ohio 45699                            and Correction
                                                  770 West Broad Street
                                                  Columbus, Ohio 43222
RDK/laa
6/3
Filed 7/14/10
Sent to S.C. reporter 11/5/10
