[Cite as Evans v. Ross Correctional Inst., 2010-Ohio-2019.]

                                       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




RONALD EVANS, JR.

        Plaintiff

        v.

ROSS CORRECTIONAL INSTITUTION

        Defendant

        Case No. 2009-03070-AD

Deputy Clerk Daniel R. Borchert


ENTRY OF DISMISSAL



        {¶ 1} On March 11, 2009, plaintiff filed a complaint against defendant, Ross
Correctional Institution. Plaintiff alleged on or about December 15, 2008, his personal
property was stolen from his cell. Plaintiff’s property consisted of a pair of Timberline
boots, AM/FM CD player, Koss headphones and 10 cds. Plaintiff asserts defendant did
not conduct a prompt search to recover his property.                   Therefore, plaintiff seeks
damages in the amount of $500.00.                   Plaintiff also sought a declaratory judgment
whereby this claim fell under the jurisdiction of the judge of the Court of Claims. This
court at the administrative determination level does not possess equitable powers to
hear this matter.
        {¶ 2} On August 19, 2009, a judge of the Court of Claims issued an entry
dismissing plaintiff’s claim for declaratory judgment and transferring the case to the
administrative docket for determination of his claim for property loss.
        {¶ 3} On September 22, 2009, defendant filed a motion to dismiss, pursuant to
Civ.R. 12(B)(6), failure to state a claim upon which relief can be granted.
Case No. 2009-03070-AD                     -2-                                    ENTRY

       {¶ 4} Defendant stated that plaintiff has presented no evidence which indicates
defendant’s agents engaged in any wrongful acts which resulted in the theft of plaintiff’s
property. On the contrary, plaintiff admitted that he left his cell door unlocked and the
items taken were not secured in the inmate’s locker box. Plaintiff does not assert that
defendant violated any duty of care with respect to the theft of plaintiff’s property.
Although defendant asserts it had no duty to search for indistinguishable property items,
a search was conducted after defendant was informed of the theft. Plaintiff delayed
informing defendant about the theft until December 15, 2008, two days after the
occurrence. Defendant’s search proved fruitless. Finally, defendant is not responsible
for the wrongful actions of other inmates. Accordingly, defendant asserts its motion to
dismiss should be granted.
       {¶ 5} Plaintiff has not responded to defendant’s motion to dismiss.
       {¶ 6} In construing a motion to dismiss pursuant to Civ.R. 12(B)(6) for failure to
state a claim, the court must presume that all factual allegations of the complaint are
true and make reasonable inferences in favor of the non-moving party.            Mitchell v.
Lawson Milk Co. (1988), 40 Ohio St. 3d 190, 532 N.E. 2d 753. Then, before the court
may dismiss the complaint, it must appear beyond doubt that plaintiff can prove no set
of facts entitling him to recovery.     O’Brien v. University Community Tenants Union
(1975), 42 Ohio St. 2d 242, 71 O.O. 2d 223, 327 N.E. 2d 753.
       {¶ 7} In the case at bar, plaintiff has not alleged or presented any evidence that
defendant was responsible for the theft of his property. Plaintiff asserts defendant’s
responsibility lies in its failure to conduct a search to recover his property. However, in
fact, a search was initiated after defendant learned of the theft. Plaintiff allowed two
days to pass before he notified defendant of the theft.             This delay in reporting
contributed to defendant’s inability to recover plaintiff’s property.
       {¶ 8} 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)
Case No. 2009-03070-AD                    -3-                                    ENTRY

with respect to inmate property, but that it does have the duty to make “reasonable
attempts to protect, or recover” such property.
       {¶ 9} 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.
       {¶ 10} 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.
       {¶ 11} The fact defendant supplied plaintiff with a locker and lock to secure
valuables constitutes prima facie evidence of defendant discharging its duty of
reasonable care. Watson v. Department of Rehabilitation and Correction (1987), 86-
02635-AD.
       {¶ 12} The mere fact that a theft occurred is insufficient to show defendant’s
negligence. Custom v. Southern Ohio Correctional Facility (1985), 84-02425. Plaintiff
must show defendant breached a duty of ordinary or reasonable care. Custom.
       {¶ 13} Defendant is not responsible for thefts committed by 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.
       {¶ 14} The fact defendant supplied plaintiff with a locker box and access to a lock
to secure valuables constitutes prima facie evidence of defendant discharging its duty of
reasonable care. Watson v. Department of Rehabilitation and Correction (1987), 86-
02635-AD.     Defendant is not required to take extraordinary measures to provide
inmates means to secure their property.
       {¶ 15} Defendant conducted a timely search for plaintiff’s property, as is required
by Phillips v. Columbus Correctional Facility (1981), 79-0132-AD, however, due to
plaintiff’s delay in reporting the incident, no property was recovered.
       {¶ 16} Therefore, defendant’s motion to dismiss is GRANTED. Plaintiff’s case is
Case No. 2009-03070-AD                 -4-                                   ENTRY

dismissed. Court costs are assumed by this court.




                                              ________________________________
                                              DANIEL R. BORCHERT
                                              Deputy Clerk

Entry cc:

Ronald Evans, Jr., #557-363                   Stephen A. Young
P.O. Box 7010                                 Department of Rehabilitation
Chillicothe, Ohio 45601                       and Correction
                                              770 West Broad Street
                                              Columbus, Ohio 43222

DRB/laa
Filed 1/22/10
Sent to S.C. reporter 5/7/10
