[Cite as Sparks v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-7039.]



                                                        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



BRYAN SPARKS

       Plaintiff

       v.

OHIO DEPT. OF REHABILITATION AND CORRECTION

       Defendant

Case No. 2011-01801

Judge Joseph T. Clark
Magistrate Robert Van Schoyck

MAGISTRATE DECISION

        {¶1} Pursuant to Civ.R. 53, Magistrate Robert Van Schoyck was appointed to
conduct all proceedings necessary for decision in this matter.
        {¶2} Plaintiff brought this action for conversion, alleging that defendant wrongfully
destroyed his personal property. The issues of liability and damages were bifurcated
and the case proceeded to trial on the issue of liability.
        {¶3} At all times relevant, plaintiff was an inmate in the custody and control of
defendant at the Marion Correctional Institution (MCI) pursuant to R.C. 5120.16.
Plaintiff testified that on the morning of February 23, 2010, a deputy sheriff arrived at
MCI to transport him to Summit County, where he was scheduled to make a court
appearance. Plaintiff stated that Corrections Officer (CO) Bentley woke him when the
deputy arrived, informed him that he needed to pack his personal property in his prison-
issued footlocker for storage while he was away, and that any personal property that
would not fit in the footlocker could be left with plaintiff’s cellmate. Plaintiff stated that
he was unable to fit everything in the footlocker, so he left the excess property in his cell
Case No. 2011-01801                          -2-                  MAGISTRATE DECISION

and presented the footlocker to CO Bentley. Bentley completed an inventory form to
document the property in the footlocker, and plaintiff’s signature appears beneath the
following language: “I certify that the above listed items are a complete and accurate
inventory of all my personal property.” (Defendant’s Exhibit C.)
       {¶4} When plaintiff returned to MCI on or about March 18, 2010, the footlocker
and its contents were returned to him, but he was instructed to meet with Sergeant
Wendi Griffith regarding the property that he left in the cell. According to plaintiff, Griffith
advised him that such property had been seized as contraband inasmuch as it
exceeded the amount of personal property that inmates can possess. Plaintiff stated
that Griffith informed him that he could mail such property out of the institution, and that
any property not mailed out would be destroyed. Plaintiff testified that Griffith then gave
him a form upon which he was to designate whether the property would be mailed or
destroyed, but he related that Griffith “snatched” the form away from him before he
could read it, and then wrote on the form that he refused to sign. (Defendant’s Exhibit
B.) According to plaintiff, he would have signed the form and mailed the property away
if he had been given time to read the form.
       {¶5} Plaintiff testified that he subsequently made numerous inquiries and
complaints to other staff members about the disposition of his property, and he stated
that some of these staff members told him the property would be returned. However,
plaintiff related that the property was ultimately destroyed. According to plaintiff, the
property that he left in the cell when he departed MCI on February 23, 2010, included
various hygiene and personal items worth $121.45, and legal documents worth $4,700;
plaintiff explained that the legal documents were articles of incorporation that he was
preparing to file with the state of Michigan.
       {¶6} Sergeant Griffith testified that she was the supervising officer assigned to
plaintiff’s housing unit. According to Griffith, an inmate who leaves MCI for a court
appearance is required to bring all of his personal property to a CO and then pack the
Case No. 2011-01801                          -3-                 MAGISTRATE DECISION

property in his footlocker, which measures 2.4 cubic feet.           Griffith stated that any
property in excess of the 2.4-cubic foot limit, as well as any property that an inmate
leaves with his cellmate, is deemed contraband pursuant to institutional rules. Griffith
explained that inmates may also store legal materials in separate footlockers that are
kept in an office, and she stated that plaintiff stored legal papers in this manner. Griffith
related that CO Bentley, who gave plaintiff the order to pack up his property, supervises
pack-ups for departing inmates on a daily basis.
       {¶7} Griffith testified that plaintiff had already left MCI when she arrived for her
shift at 11:00 a.m. on March 23, 2010, and that around 2:00 p.m. that day, plaintiff’s
cellmate apprised her of the property that plaintiff left in the cell. Griffith stated that she
visited the cell, inspected the items, and instructed a CO to bring the items to the
property vault and to write a conduct report for plaintiff. (Defendant’s Exhibit A.) Griffith
testified that the confiscated property included only a portion of the items described in
plaintiff’s complaint, that there were no papers other than a Bible and a drawing of a
house, and that the total value of the property was less than $100.
       {¶8} According to Griffith, when plaintiff returned to MCI on March 18, 2010, she
summoned him to her office, held a hearing on the conduct report, found him guilty of
both possessing contraband and possessing several items for which he could not prove
ownership, informed him that any items he had proven ownership of could be mailed
away, and explained to him that any items not mailed away would be destroyed. Griffith
testified that plaintiff initially wished to mail the property, but that after reading the
associated form he became upset, said he could not afford the mailing expenses, and
refused to sign. Griffith wrote on the form that plaintiff refused to sign, which meant that
the property would be destroyed. (Defendant’s Exhibit B.)
       {¶9} Griffith testified that the property was “minor” contraband worth not more
than $100, which could thus be destroyed without a forfeiture order. However, Griffith
testified that about one month later, Lieutenant Jason Michel, who managed the
property vault, informed her that the property had yet to be destroyed and asked her
Case No. 2011-01801                         -4-                 MAGISTRATE DECISION

what to do with it. Griffith testified that some delay or confusion may have resulted from
the paperwork that reflected plaintiff’s initial desire to mail the property out, and his
subsequent refusal to sign the form. (Defendant’s Exhibit B.) In any event, Griffith
stated that since the property had not been disposed of in the normal course, she
consulted with Deputy Warden Jason Bunting and another supervisor to confirm that it
should still be destroyed, and she thereafter arranged for its destruction.
       {¶10} Lieutenant Michel testified that at all times relevant, he was the contraband
supervisor, in which capacity he managed the property vault. Michel stated that plaintiff
visited him at the property vault and sent him an institutional “kite” on which he replied
by writing, in part, that “your items will be returned this week.” (Plaintiff’s Exhibit 1.)
However, Michel stated that he had no authority over the disposition of inmate property,
which was the responsibility of sergeants.        Michel explained that his response to
plaintiff’s kite meant only that plaintiff could recover any items that a sergeant had
determined he was eligible to recover.
       {¶11} Acting Warden Jason Bunting, who was a deputy warden at all times
relevant, testified that plaintiff was properly cited for possession of contraband inasmuch
as his personal property did not fit into his footlocker. Bunting stated that, in general, an
inmate’s excess property is destroyed if he declines to mail it outside the institution.
According to Bunting, plaintiff approached him multiple times to inquire about the
property in question, but he told plaintiff that he would receive only such property as he
was deemed entitled to possess.
       {¶12} Captain Robert Morgan testified that when plaintiff approached him and
inquired about the status of the property in question, he agreed to look into the matter,
but informed plaintiff that he could not retrieve any property deemed contraband.
Morgan further testified that when he visited the property vault and asked Michel about
the matter, he learned that the property had already been released for destruction.
Case No. 2011-01801                         -5-                 MAGISTRATE DECISION

       {¶13} “Conversion is ‘the wrongful exercise of dominion over property to the
exclusion of the rights of the owner, or withholding it from his possession under a claim
inconsistent with his rights.’” Allan Nott Ent., Inc. v. Nicholas Starr Auto, L.L.C., 110
Ohio St.3d 112, 2006-Ohio-3819, ¶36, quoting Joyce v. Gen. Motors Corp. (1990), 49
Ohio St.3d 93, 96.
       {¶14} “[Defendant] does not have the liability of an insurer (i.e., is not liable
without fault) with respect to inmate property, but it does have the duty to make
reasonable attempts to protect such property. * * * When prison authorities obtain
possession of an inmate’s property, a bailment relationship arises between the
correctional facility and the inmate. * * * By virtue of this relationship, [defendant] must
exercise ordinary care in handling and storing [inmate] property. * * * However, a
correctional institution cannot be held liable for the loss of contraband property that an
inmate has no right to possess.” Triplett v. S. Ohio Correctional Facility, Franklin App.
No. 06AP-1296, 2007-Ohio-2526, ¶7. (Internal citations omitted.)
       {¶15} Upon review, the court finds that plaintiff possessed more than 2.4 cubic
feet of personal property and left the excess property with his cellmate upon leaving
MCI, thereby rendering such property contraband subject to confiscation under the MCI
handbook and Ohio Adm.Code 5120-9-33. Although plaintiff testified that CO Bentley
instructed him to leave the excess property with his cellmate, the court does not find this
testimony to be credible.
       {¶16} Plaintiff left the items in his cell at least seven hours before Griffith learned
of the same, and the written inventory of items confiscated by Griffith includes only a
portion of the items that plaintiff claims to have left behind. Plaintiff’s cellmate, if not
other inmates, had access to this property before the confiscation, and the court finds
that plaintiff cannot recover for items that were lost during that period of time inasmuch
as he failed to deliver such items into defendant’s possession and failed to otherwise
show that defendant assumed control over them. See Lacey v. Ohio Dept. of Rehab. &
Corr., Ct. of Cl. No. 2005-07453-AD, 2008-Ohio-2636, ¶19. Further, Griffith testified
Case No. 2011-01801                         -6-                 MAGISTRATE DECISION

that the confiscated property included copper wire that plaintiff was prohibited from
possessing, and he thus cannot recover for its loss. See Triplett, supra. Plaintiff is also
unable to recover for the destruction of any property for which he failed to prove
ownership at the March 18, 2010 hearing. See Lacey, supra, at ¶24.
       {¶17} At the conclusion of that hearing, Griffith presented plaintiff with a choice to
either mail away his remaining property or have it destroyed, and he was given a form
on which to memoralize his designation and affix his signature. The court finds that
plaintiff refused to complete the form, and that he instead elected to lobby various
employees to simply return the property to him. Although plaintiff testified that he would
have mailed the items if Griffith had given enough time to read the form, the court finds
Griffith more persuasive in testifying that plaintiff was given ample time to read the form
and that plaintiff understood his options. By refusing to mail away his property, plaintiff
effectively abandoned such property and relinquished any rights of ownership. Id. at
¶25; Reardon v. N. Cent. Correctional Institution, Ct. of Cl. No. 2008-10960-AD, 2009-
Ohio-4674, ¶12.
       {¶18} For the foregoing reasons, the court finds that defendant exercised an
appropriate degree of care toward plaintiff’s personal property at all times, and that
plaintiff has failed to prove his claim of conversion by a preponderance of the evidence.
Accordingly, it is recommended that judgment be rendered in favor of defendant.
       {¶19} A party may file written objections to the magistrate’s decision within 14
days of the filing of the decision, whether or not the court has adopted the decision
during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files
objections, any other party may also file objections not later than ten days after the first
objections are filed. A party shall not assign as error on appeal the court’s adoption of
any factual finding or legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely
Case No. 2011-01801                         -7-                MAGISTRATE DECISION

and specifically objects to that factual finding or legal conclusion within 14 days of the
filing of the decision, as required by Civ.R. 53(D)(3)(b).



                                           _____________________________________
                                           ROBERT C. VAN SCHOYCK
                                           Magistrate

cc:


Emily M. Simmons                              Bryan Sparks, #463-981
Jeanna R. Volp                                Marion Correctional Institution
Assistant Attorneys General                   P.O. Box 57
150 East Gay Street, 18th Floor               Marion, Ohio 43301-0057
Columbus, Ohio 43215-3130

RCV/dms
Filed December 29, 2011
To S.C. reporter March 20, 2012
