[Cite as Howard v. Mansfield Correctional Inst., 2010-Ohio-4783.]

                                      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




JASON HOWARD

       Plaintiff

       v.

MANSFIELD CORRECTIONAL INSTITUTION

       Defendant

        Case No. 2009-09019-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


                                         FINDINGS OF FACT
        {¶ 1} 1)       On September 10, 2008, plaintiff, Jason Howard, an inmate
incarcerated at defendant, Mansfield Correctional Institution (ManCI), was transferred
from the ManCI general population to a segregation unit. Plaintiff’s personal property
was inventoried, packed, and delivered into the custody of ManCI staff incident to the
September 10, 2008 transfer.             Plaintiff related his property remained stored in the
ManCI vault until March 9, 2009 when he was transferred from ManCI to the Trumbull
Correctional Institution (TCI). Plaintiff’s property was again inventoried incident to his
transfer to TCI and the items were forwarded to that institution. On March 10, 2009, TCI
staff also inventoried plaintiff’s property. Plaintiff submitted copies of all three property
inventories, dated September 10, 2008, March 9, 2009, and March 10, 2009.
        {¶ 2} 2)       Plaintiff explained he briefly examined his property before he boarded
a bus for transport from ManCI to TCI and he informed ManCI employee Lt. Page that
he was “missing a bag of property.” Plaintiff related he retrieved his property at TCI on
March 10, 2009 and discovered multiple items were missing. Plaintiff contended the
missing property items were left in the ManCI property vault when he was transferred
from that institution on March 9, 2009. Plaintiff maintained the following articles of
property were lost while under the control of ManCI personnel: “1 Blue Blanket, 1 Pair
Blue Shorts, 1 Sweat Shirt, 1 Sweat Pants, 2 Towels, 1 Pair House Shoes, 3 Pair of
Socks, 3 T-Shirts, 1 Belt, 2 Pair Gloves, 1 Beard Trimmers, 1 Shampoo, 1 Conditioner,
1 Brush & Comb, 1 Pair Riddel White tennis shoes, Handballs, and 1 T.V. Remote.”
Plaintiff contended defendant should bear liability for the loss of his property and he has
consequently, filed this complaint seeking to recover $176.00, the stated replacement
cost of the items. Payment of the filing fee was waived.
       {¶ 3} 3)    Plaintiff submitted copies of his three Inmate Property Records
compiled on September 10, 2008, March 9, 2010, and March 10, 2010. The September
10, 2008 inventory compiled at ManCI lists the following items relevant to this claim:
one blanket, two pairs of gym shorts, two sweat shirts, one pair of sweat pants, three t-
shirts, one personal belt, four towels, one pair of house shoes, three pairs of socks, two
pairs of personal gloves, a shampoo, a conditioner, and brushes and combs. Beard
trimmers, tennis shoes, handballs, and a t.v. remote control are not listed on the
September 10, 2008 Inmate Property Record. The March 9, 2010 inventory compiled at
ManCI and the March 10, 2010 inventory compiled at TCI do not list any of the items
claimed in plaintiff’s complaint with the exception of one pair of gym shorts, one sweat
shirt, and one towel.
       {¶ 4} 4)    Defendant denied any liability in this matter asserting plaintiff failed to
provide proof he actually owned any of the items claimed. Defendant stated, “[t]here is
no proof that the items were lost due to negligence” on the part of ManCI staff.
Defendant suggested plaintiff voluntarily discarded property to meet volume limitations
for inmate property possession.
       {¶ 5} 5)    Plaintiff filed a response insisting he owned all the property claimed
and all items claimed were lost while under the control of ManCI personnel. Plaintiff
specifically denied he discarded any property to satisfy volume limitations set by
defendant.
       {¶ 6} 5)    Defendant submitted a copy of plaintiff’s Inmate Property Record
compiled by ManCI staff and dated August 13, 2008. This Inmate Property Record lists
one pair of white Riddel gym shoes. Both plaintiff and defendant submitted copies of
grievances plaintiff filed in regard to his property loss claim. In a grievance appeal
dated June 19, 2009, plaintiff asserted his gym shoes were packed on September 10,
2008, but were not listed by the packing officer due to the fact the officer listed the
shoes on the Inmate Property Record as “Shoes/Work Boot” rather than “Shoes/Gym.”
On the subsequent Inmate Property Records compiled on March 9, 2009 and March 10,
2009, there are no “Shoes/Work Boot” listed.
                               CONCLUSIONS OF LAW
      {¶ 1} 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.
      {¶ 2} 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, 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.
      {¶ 3} 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.
      {¶ 4} 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.
      {¶ 5} 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.
      {¶ 6} 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.
      {¶ 7} 7)   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.
       {¶ 8} 8)   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 credible in regard to the delivery of most of the property into the custody of
ManCI staff. The court also finds plaintiff’s assertions regarding ownership of property
to be persuasive.
       {¶ 9} 9)   Negligence on the part of defendant has been shown in respect to the
issue protecting plaintiff’s property after he was transferred to segregation on
September 10, 2008. Billups v. Department of Rehabilitation and Correction (2001),
2000-10634-AD.      Plaintiff has offered sufficient proof to establish all property items
claimed with the exception of a pair of handballs, beard trimmers, and a remote control
were lost or stolen while under the control of ManCI staff.
       {¶ 10} 10) The standard measure of damages for personal property loss is market
value. McDonald v. Ohio State Univ. Veterinary Hosp. (1994), 67 Ohio Misc. 2d 40, 644
N.E. 2d 750.
       {¶ 11} 11) In a situation where a damage assessment for personal property
destruction or loss based on market value is essentially indeterminable, a damage
determination may be based on the standard value of the property to the owner. This
determination considers such factors as value to the owner, original cost, replacement
cost, salvage value, and fair market value at the time of the loss. Cooper v. Feeney
(1986), 34 Ohio App. 3d 282, 518 N.E. 2d 46.
       {¶ 12} 12) As trier of fact, this court has the power to award reasonable damages
based on evidence presented. Sims v. Southern Ohio Correctional Facility (1988), 61
Ohio Misc. 2d 239, 577 N.E. 2d 160.
       {¶ 13} 13) Damage assessment is a matter within the function of the trier of fact.
Litchfield v. Morris (1985), 25 Ohio App. 3d 42, 25 OBR 115, 495 N.E. 2d 462.
Reasonable 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 (1995), 102 Ohio App. 3d 782, 658 N.E. 2d 31.
      {¶ 14} 14) Plaintiff has suffered damages in the amount of $138.21.




                              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




JASON HOWARD

      Plaintiff

      v.

MANSFIELD CORRECTIONAL INSTITUTION

      Defendant

      Case No. 2009-09019-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 plaintiff in the amount of $138.21. Court costs are assessed against defendant.
                                DANIEL R. BORCHERT
                                Deputy Clerk

Entry cc:

Jason Howard, #470-060          Gregory C. Trout, Chief Counsel
5701 Burnett Road               Department of Rehabilitation
P.O. Box 901                    and Correction
Leavittsburg, Ohio 44430        770 West Broad Street
                                Columbus, Ohio 43222

RDK/laa
5/13
Filed 6/8/10
Sent to S.C. reporter 10/1/10
