[Cite as Kennedy v. Madison Corr. Inst., 2011-Ohio-4151.]



                                      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




PATRICK KENNEDY

       Plaintiff

       v.

MADISON CORRECTIONAL INSTITUTION

       Defendant

        Case No. 2011-01704-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION


                                             FINDINGS OF FACT
        {¶1}    Plaintiff, Patrick Kennedy, an inmate incarcerated at defendant, Madison
Correctional Institution (MaCI), alleged that several items of his personal property were
stolen from his cell housing unit on May 27, 2010, at a time when he was away from the
unit. Plaintiff recalled that he and his cellmate left the cell at approximately 12:50 p.m.
to report to the chow hall. Plaintiff related that before they left the area, both he and his
cellmate made sure that the door to their cell was locked. Plaintiff asserted that he
returned to his cell at approximately 1:15 p.m. and verified that his cell door was still
locked. However, upon entering the cell, plaintiff noticed that at sometime during his
absence, unidentified inmates had entered his cell and stolen several items of his
personal property.
        {¶2}    Plaintiff related that the stolen property included the following: one Zenith
converter box, one Kool fan, one pair of headphones, three Coaxals, one Draftline
mechanical pencil, one Pentel mechanical pencil, one five-pack assorted highlighters,
two rolls clear tape, one roll of masking tape, one sharpener, one 0.5mm lead
replacement tub, one 0.7mm lead replacement tub, assorted commissary items
purchased May 26, 2010. Plaintiff implied that his property was stolen as a proximate
result of negligence on the part of MaCI staff in failing to adequately protect the property
from theft attempts. Plaintiff filed this complaint seeking to recover $1,160.64, for the
stated replacement cost of his alleged stolen property and for emotional distress.1 The
filing fee was paid.
        {¶3}    Along with his complaint, plaintiff filed a Statement of Existence of
Connected Actions Form referencing an earlier case he filed, Case No. 2010-10157-AD.
Plaintiff also filed subpoena requests for defendant to produce documents and for
inmate Duff, Captain Turner, and Corrections Officer Varner to appear. Administrative
determination       cases     are    decided      administratively      without     a    court    hearing.
Consequently, the subpoena request for Duff, Turner, and Varner to appear is DENIED.
In addition, the file contains copies of reports and actions taken by defendant as a result
of the reported cell theft/loss. Accordingly, plaintiff’s subpoena request for defendant to
produce documents is DENIED.
        {¶4}    Defendant denied any liability in this matter contending that plaintiff failed
to offer any evidence to prove that his property was stolen as a proximate result of any
negligent conduct on the part of defendant. Defendant denied ever exercising control
over any of the alleged stolen property items. Defendant argued that no evidence has
been offered to establish that plaintiff suffered property loss as a result of any act
attributable to MaCI personnel.             Defendant advised that MaCI staff searched for
plaintiff's property but did not locate any of the alleged missing items.
        {¶5}    Plaintiff filed a response essentially reiterating the allegations made in the
complaint.




        1
           Initially, it should be noted that this court does not recognize entitlement to damages for mental
distress and extraordinary damages for simple negligence involving property loss. Galloway v.
Department of Rehabilitation and Correction (1979), 78-0731-AD; Berke v. Ohio Dept. of Pub. Welfare
(1976), 52 Ohio App. 2d 271, 6 O.O. 3d 280, 369 N.E. 2d 1056. Consequently, the court shall address
plaintiff’s claim based on the standard measure of damages for property loss.
                                    CONCLUSIONS OF LAW
       {¶6}   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.
       {¶7}   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.
       {¶8}   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.
       {¶9}   Plaintiff must produce evidence which affords a reasonable basis for the
conclusion that 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.
       {¶10} 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.
       {¶11} "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, ¶ 41, citing Miller v.
Paulson (1994), 97 Ohio App. 3d 217, 221, 646 N.E. 2d 521;
       {¶12} The allegation that a theft may have occurred is insufficient to show
defendant's negligence. Williams v. Southern Ohio Correctional Facility (1985), 83-
07091-AD; Custom v. Southern Ohio Correctional Facility (1985), 84-02425. Plaintiff
must show defendant breached a duty of ordinary or reasonable care. Williams.
       {¶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 that defendant supplied plaintiff with a locker box 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.
       {¶15} Defendant is not required to take extraordinary measures to provide
inmates means to secure their property. Andrews v. Allen Correctional Inst., Ct. of Cl.
No. 2008-09732-AD, 2009-Ohio-4268.
       {¶16} Defendant, when it retains control over whether an inmate’s cell door is to
be open or closed, owes a duty of reasonable care to inmates who are exclusively
forced to store their possessions in the cell while they are absent from the cell. Smith v.
Rehabilitation and Correction (1978), 77-0440-AD.
       {¶17} However, in the instant claim, plaintiff has failed to prove defendant
negligently or intentionally unlocked his cell door, and therefore, no liability shall attach
to defendant as a result of any theft based on this contention. Carrithers v. Southern
Ohio Correctional Facility (2002), 2001-09079-AD.
       {¶18} Generally, defendant has a duty to conduct a search for plaintiff's property
within a reasonable time after being notified of the theft. Phillips v. Columbus
Correctional Facility (1981), 79-0132-AD; Russell v. Warren Correctional Inst. (1999),
98-03305-AD.
       {¶19} Moreover, a search is not always necessary. In Copeland v. Department
of Rehabilitation and Correction (1985), 85-03638-AD, the court held that defendant had
no duty to search for missing property if the nature of the property is such that it is
indistinguishable and cannot be traced to plaintiff. In the instant case, the majority of
the claimed stolen property was indistinguishable. Wallace v. Grafton Corr. Inst., Ct. of
Cl. No. 2009-01743, 2009-Ohio-5741.
       {¶20} Plaintiff has failed to prove, by a preponderance of the evidence, that
defendant was negligent in respect to making any attempts to recover distinguishable
or indistinguishable stolen property. See Williams v. Dept. of Rehab. & Corr., Ct. of Cl.
No. 2005-11094-AD, 2006-Ohio-7207.
       {¶21} Plaintiff has failed to prove, by a preponderance of the evidence, that any
of his property was stolen or unrecovered as a proximate result of any negligent
conduct attributable to defendant. Fitzgerald v. Department of Rehabilitation and
Correction (1998), 97-10146-AD; Hall v. London Correctional Inst., Ct. of Cl. No. 2008-
04803-AD, 2008-Ohio-7088.
       {¶22} In addition, 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, 479, 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
that plaintiff alleges that MaCI staff somehow violated internal prison regulations and the
Ohio Administrative Code, he fails to state a claim for relief. See Sharp v. Dept of
Rehab. & Corr., Ct. of Cl. No. 2008-02410-AD, 2008-Ohio-7064, ¶5. Consequently,
plaintiff's claim is denied.
                                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




PATRICK KENNEDY

        Plaintiff

        v.

MADISON CORRECTIONAL INSTITUTION

        Defendant

        Case No. 2011-01704-AD

Clerk Miles C. Durfey


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.



                                                 ________________________________
                                                 MILES C. DURFEY
                                                 Clerk

Entry cc:

Patrick Kennedy, #393-577                        Gregory C. Trout, Chief Counsel
1851 St. Rt. 56                                  Department of Rehabilitation
P.O. Box 740                                     and Correction
London, Ohio 43140-0740                          770 West Broad Street
                                                 Columbus, Ohio 43222
SJM/laa
4/20
Filed 5/24/11
Sent to S.C. reporter 8/19/11
