[Cite as Wise v. Ross Correctional Inst., 2011-Ohio-1772.]

                                       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




ALVIN WISE

        Plaintiff

        v.

ROSS CORRECTIONAL INSTITUTION

        Defendant

        Case No. 2010-08870-AD

Deputy Clerk Daniel R. Borchert


ENTRY OF DISMISSAL



        {¶ 1} On July 8, 2010, plaintiff, Alvin Wise, filed a complaint against defendant,
Ross Correctional Institution. Plaintiff asserts on December 25, 2009, at approximately
1:45, he discovered personal property missing from his cell. Plaintiff admitted he left his
cell door unlocked while he was away.
        {¶ 2} On October 26, 2010, defendant filed a motion to dismiss. Defendant
asserts plaintiff failed to state a claim upon which relief can be granted. Defendant
contends plaintiff has failed to allege that any conduct on the part of defendant caused
plaintiff’s property loss.
        {¶ 3} Plaintiff did not respond to defendant’s motion to dismiss.
        {¶ 4} This court has held that the mere fact that a theft occurred is not enough
to show that defendant is liable for the loss of plaintiff’s property. Custom v. Southern
Ohio Correctional Facility (1986), 84-02425.
        {¶ 5} In order for plaintiff to be compensated for his claimed loss he must show,
Case No. 2010-08870-AD                    -2-                                      ENTRY



by a preponderance of the evidence, defendant’s agents knew or had reason to know
that another person would enter plaintiff’s cell during his absence with the intent to steal
property belonging to the prisoner.      Warren v. The State of Ohio, Department of
Correction, 36 Ohio Misc. 2d 18, 521 N.E. 2d 861, at 862. In this case, the plaintiff has
neither alleged, nor provided, any evidence that defendant had reason to believe that
someone would enter his unsecured cell to steal his property.           Furthermore, while
prison officials are required to use reasonable or ordinary care in protecting a prisoner’s
personal property when a prisoner is away from his cell, officials are not insurers of the
safety of the prisoner’s personal possessions. Warren, at 862. The defendant does not
have the liability of an insurer (i.e., is not liable without fault with respect to inmate
property), but does have a duty of “reasonable attempts to protect or recover” such
property.   Defendant is not responsible for the actions of other inmates unless an
agency relationship is shown. Walker v. Southern Ohio Correctional Facility (1978), 78-
0217-AD. Finally, plaintiff must show that defendant breached a duty of ordinary or
reasonable care. Henderson v. Department of Rehabilitation and Correction (1976), 76-
0292-AD.
       {¶ 6} The defendant’s investigation revealed that plaintiff did not report the loss
of the Super 3 Radio, tennis shoes, and CD player to defendant’s agents. Plaintiff
reported the theft of the boots on January 11, 2009 (17 days after the theft) and
defendant’s security staff immediately investigated the theft following plaintiff’s report. A
search was conducted and inmates in the surrounding area were questioned but the
property was not located.
       {¶ 7} Upon review, this court finds the defendant’s motion to dismiss is
Case No. 2010-08870-AD                 -3-                                  ENTRY



GRANTED, since plaintiff failed to state a claim upon which relief can be granted.
Plaintiff’s case is DISMISSED. The court shall absorb the court costs in this case in
excess of the filing fee.




                                             ________________________________
                                             DANIEL R. BORCHERT
                                             Deputy Clerk

Entry cc:

Alvin Wise, #339-417                         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 1/21/11
Sent to S.C. reporter 4/8/11
