[Cite as Lambert v. Dept. of Rehab. & Corr., 2010-Ohio-6321.]

                                      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




LOREN LAMBERT

       Plaintiff

       v.

DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant

        Case No. 2009-06991-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                         FINDINGS OF FACT
        {¶ 1} 1)       On or about October 15, 2007, plaintiff, Loren M. Lambert, Jr., an
inmate incarcerated at defendant’s Chillicothe Correctional Institution (CCI), was
transferred from the CCI general population to a segregation unit. Plaintiff’s personal
property was inventoried, packed, and delivered into the custody of CCI staff incident to
this transfer. Plaintiff explained he was subsequently given an opportunity to examine a
copy of his Inmate Property Record (inventory), compiled when his property was
packed.      Plaintiff pointed out that after examining his inventory he notified CCI
personnel that multiple property items consisting of art work, art supplies, commissary
items, and legal work were not listed on the inventory and presumedly had not been
packed. Plaintiff stated, “I then found out through other inmates that inmate Colver,
#475-434 (Culver), had my property, so I sent word to him to give my property to (CCI
employee) Sgt. Disantis.”
        {¶ 2} 2)       On or about November 1, 2007, plaintiff was transferred from CCI to
defendant’s Ross Correctional Institution (RCI).                Plaintiff noted that while he was
awaiting transfer to RCI he had an opportunity to examine his property inventory and
discovered that multiple property items that had been in the possession of inmate
Culver were not listed on the inventory. Plaintiff related he informed CCI staff about the
property that was in the possession of inmate Culver and he was assured that the
property would be retrieved. Plaintiff further related he was told by a CCI employee that
his remaining property would be forwarded to “RCI on the Lucasville hub transport bus.”
Plaintiff recalled he was transferred to RCI without the property that was in the
possession of inmate Culver and when he subsequently went to the RCI vault to
retrieve legal work he discovered none of the items possessed by inmate Culver had
been forwarded to RCI.     Plaintiff asserted he later learned the property in Culver’s
possession had been confiscated by CCI staff and Culver was issued a conduct report
for contraband possession.     Plaintiff further asserted he discovered the confiscated
property had been sent from CCI to the Southern Ohio Correctional Facility (SOCF) on
the SOCF Lucasville transport bus and the property was stored in the SOCF vault.
Plaintiff advised that he never regained possession of the property that had allegedly
been sent to SOCF and stored in the SOCF property vault. Plaintiff filed this action
contending defendant, Department of Rehabilitation and Correction (DRC) should bear
liability for the loss of multiple property items confiscated by CCI staff from inmate
Culver. Plaintiff seeks recovery of damages in the amount of $1,067.69, the stated
value of art work, art supplies, legal work, and items purchased at the CCI commissary.
Payment of the filing fee was waived.
      {¶ 3} 3)     Defendant acknowledged plaintiff’s property was packed on October
15, 2007 when he was placed in segregation.         Defendant asserted all of plaintiff’s
property that could be identified as his was packed and placed in the CCI property vault.
Defendant further acknowledged that on November 1, 2007, inmate Culver delivered a
“trash bag of miscellaneous items” to staff at CCI. Defendant related, “Inmate Culver
stated that Inmate Lambert, the plaintiff, had given him these items to hold for him while
he was locked up” in the CCI segregation unit. Defendant advised Culver was issued a
conduct report at that time for possession of contraband and the property he identified
as belonging to plaintiff was confiscated.    Culver was subsequently found guilty of
possession of contraband and the confiscated property “was ordered destroyed.”
Defendant denied ever exercising control over the declared contraband until it was
confiscated from Culver’s possession. Defendant noted, “[i]t is a violation of the inmate
rules of conduct for an inmate to possess the property of another, or to possess
contraband.” Defendant contended that due to the fact property allegedly owned by
plaintiff was possessed by another inmate, plaintiff has no remedy for loss or
destruction of such property, which is considered contraband. Additionally, defendant
disputed plaintiff’s assertions regarding the type, quantity, and quality of the confiscated
property items as well as plaintiff’s damage claim.
       {¶ 4} 4)    Plaintiff filed a response insisting that the property items subject to
this claim were “left behind” by the CCI employee, who conducted the property pack up
on October 5, 2007.      Plaintiff asserted inmate Culver then “helped himself” to the
property that was allegedly “left behind.” Plaintiff stated he, “signed for the property that
was packed up by the guard and he received it.” Plaintiff contended Culver stole the
property listed in the complaint and subsequently lied about being asked to hold the
property for plaintiff. Plaintiff maintained his property was originally subject to theft as a
result of negligence on the part of CCI staff in not conducting a complete and accurate
pack up.
                                 CONCLUSIONS OF LAW
       {¶ 5} 1)    In order to prevail, plaintiff must prove, by a preponderance of the
evidence, that defendant owed him a duty, that it 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.
       {¶ 6} 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,¶41;
Mussivand v. David (1989), 45 Ohio St. 3d 314, 318, 544 N.E. 2d 265.
       {¶ 7} 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.
       {¶ 8} 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.
      {¶ 9} 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.
      {¶ 10} 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.
      {¶ 11} 7)     Plaintiff’s failure to prove delivery of property to defendant constitutes
a failure to show imposition of a legal bailment duty on the part of defendant in respect
to lost property.   Prunty v. Department of Rehabilitation and Correction (1987), 86-
02821-AD.
      {¶ 12} 8)     Plaintiff cannot recover for property loss when he fails to produce
sufficient evidence to establish that defendant actually assumed control over the
property claimed. Whiteside v. Orient Correctional Inst., Ct. of Cl. No. 2002-05751,
2005-Ohio-4455 obj. overruled, 2005-Ohio-5068.
      {¶ 13} 9)     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 (1986), 84-02425. Plaintiff
must show defendant breached a duty of ordinary or reasonable care. Williams.
      {¶ 14} 10) 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.
      {¶ 15} 11) Plaintiff has failed to prove a causal connection between any property
loss and any breach of duty owed by defendant in regard to protecting inmate property.
Druckenmiller v. Mansfield Correctional Inst. (1998), 97-11819-AD.
      {¶ 16} 12) Plaintiff has failed to prove, by a preponderance of the evidence, that
any of his property was stolen as a proximate result of any negligent conduct
attributable to defendant. Fitzgerald v. Department of Rehabilitation and Correction
(1998), 97-10146-AD.
      {¶ 17} 13) 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. In the instant action, the
trier of fact finds that the statements of plaintiff are not particularly credible regarding the
acts of inmate Culver. The trier of fact finds the evidence tends to indicate plaintiff
voluntarily delivered property to Culver.
       {¶ 18} 14) Plaintiff has no right to pursue a claim for destroyed property in which
he cannot prove any right of ownership. DeLong v. Department of Rehabilitation and
Correction (1988), 88-06000-AD.         Defendant cannot be held liable for contraband
property that plaintiff has no right to possess.             Beaverson v. Department of
Rehabilitation and Correction (1988), 87-02540-AD; Radford v. Department of
Rehabilitation and Correction (1985), 84-09071.          The acts of plaintiff in voluntarily
relinquishing possession of property to another inmate constitutes evidence that
ownership rights were relinquished. Johnson v. Ohio Reformatory for Women, Ct. of Cl.
No. 2004-01087, 2004-Ohio-4818.
       {¶ 19} 15) An inmate is barred from pursuing a claim for the loss of property
when such property is declared impermissible pursuant to departmental policy. Zerla v.
Dept. of Rehab. and Corr. (2001), 2000-09849-AD.




                                 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




LOREN M. LAMBERT, JR.

      Plaintiff

      v.
DEPT. OF REHABILITATION AND CORRECTION

        Defendant

        Case No. 2009-06991-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 defendant. Court costs are assessed against plaintiff.



                                                 ________________________________
                                                 DANIEL R. BORCHERT
                                                 Deputy Clerk

Entry cc:

Loren M. Lambert, Jr., #179-949                  Gregory C. Trout, Chief Counsel
P.O. Box 7010                                    Department of Rehabilitation
Chillicothe, Ohio 45601                          and Correction
                                                 770 West Broad Street
                                                 Columbus, Ohio 43222
RDK/laa
7/22
Filed 9/8/10
Sent to S.C. reporter 12/17/10
