[Cite as Mason v. Ohio Dept. of Rehab. & Corr., 2013-Ohio-5923.]



                                                       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




MATT MASON

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant

Case No. 2012-08753-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                         FINDINGS OF FACT
          {¶1}   1)      On December 17, 2013, plaintiff, Matt Mason, an inmate, filed a
complaint against defendant, Ohio Department of Rehabilitation and Correction
(“ODRC”). Plaintiff related that on August 3, 2012 at approximately 5:15 a.m., he was
escorted to segregation by a Correctional Officer (“C.O.”). Plaintiff asserted that he was
not allowed to pack his personal property and his property was secured with four locks.
Locks secured “his foot locker, his extra legal locker, his cabinet, and all of his appliance
. . . cords.” After he was taken to segregation, defendant’s staff “used bolt cutters to cut
off all four of plaintiff’s combination locks, dumped his property out of (the) locker box
into a bag, and left the bag unattended.” Plaintiff reported his personal property was
stolen.
          {¶2}   2)      Plaintiff contends the following property items were stolen due to
defendant’s failure to protect his property:                “4 combination locks; 1 headphone
extension; 1 Sony earbuds; 1 calculator; clock w/battery; 1 pr. tweezers; 4 new pairs
Case No. 2012-08753-AD                      -2-               MEMORANDUM DECISION



commissary socks; 1 bath powder; 1 deodorant; 1 shampoo; 1 toothpaste; 1 box sugar;
2 refried beans; 3 summer sausages (all new); 1 lamp with bulb; a pr. $12.00 wool
winter socks, other miscellaneous items, including 1 surge protector.” Plaintiff seeks
damages in the amount of $172.38. Plaintiff submitted the $25.00 filing fee.
          {¶3}   3)     Plaintiff presented receipts from the commissary at defendant’s
London Correctional Institution which reveal that plaintiff purchased the headphone
extension cable for $2.39, box of sugar cubes for $1.42, and three summers sausages
for $5.43 on May 23, 2012. On July 17, 2012, he purchased deodorant for $3.05 and
bath powder for $1.94.        A review of his property record compiled on April 4, 2012
indicated that he was in possession of an alarm clock, lamp, and surge protector.
          {¶4}   4)     Defendant submitted the investigation report admitting liability for
destroying three of plaintiff’s combination locks, but denying liability for the remainder of
plaintiff’s property.
          {¶5}   5)     Inspector DeCarlo M. Blackwell, in a letter to staff counsel dated
March 28, 2013, stated the following:
          {¶6}   “On 8/3/2012 Officer McDonald went to Inmate Mason’s dorm to pack up
his property. Officer McDonald did not have the inmate’s combination so his locks were
cut off and the property was removed from the housing unit.             Officer’s McDonald
personally conducted the pack up and escorted it out of the dorm. He never left the
property unattended. Upon arriving back to the Vault he inventoried the property and
listed only what was retrieved from the wall and two foot lockers. This is a total of three
locks.”
          {¶7}   6)     Finally, defendant speculated “that inmates in the housing unit
tampered with pad lock, gained access to your property and stole the wanted items.”
Accordingly, ODRC requests that plaintiff’s claim be dismissed.
          {¶8}   7)     Plaintiff filed a motion for summary judgment. Plaintiff requested
Case No. 2012-08753-AD                        -3-                MEMORANDUM DECISION



that judgment be awarded in his favor based upon ODRC’s failure to timely submit the
investigation report and the admission that defendant’s agents cut his locks off his
secured property items.
       {¶9}     8)       Plaintiff filed a motion for production of documents. Plaintiff seeks
“footage from the Camera located directly above Plaintiff’s bed area in London
Correctional Institution (LoCI) Dorm B-2, bed 113 Lower from between 5:00 a.m. and
7:30 A.M. from August 3, 2012.”             In the alternative, a work order directing the
maintenance department to repair this camera if defendant claims the camera was not
operational at this time.
       {¶10} 9)          Plaintiff filed a second motion for production of evidence seeking
defendant’s duty roster for August 3, 2012 for the time period 5:00 through 6:00 a.m.
Plaintiff seeks this information to prove Captain Johnson was not on duty at the time of
the incident.        Plaintiff also seeks documents concerning an earlier incident when
defendant replaced certain items of plaintiff’s lost property.
       {¶11} 10)         Plaintiff filed a motion to have the investigation report stricken since
it was untimely filed and contained “deliberate lies.”
       {¶12} 11)         Plaintiff submitted a response to defendant’s investigation report.
Plaintiff stated that his property was left unattended during the pack up process and
presents the affidavit of Shaun K. Smith to support this allegation. Plaintiff contended
that defendant’s agents cut off four locks not three as mentioned in the investigation
report. Plaintiff disputes defendant’s reliance on a commissary slip dated May 23, 2013
for the purchase of summer sausage, sugar, and beans.                    Plaintiff asserted this
commissary slip was provided to prove that he purchased the headphone extension
cable on that date. Plaintiff contended that the food items in question were purchased
on July 25, 2013 and requested that this commissary slip be provided by defendant.
       {¶13} Plaintiff again reiterates his position that the camera in question was in
Case No. 2012-08753-AD                   -4-                  MEMORANDUM DECISION



working order and to view this footage would support plaintiff’s allegations. Accordingly,
plaintiff argues judgment should be rendered in his favor.
                                   CONCLUSIONS OF LAW
      {¶14} 1)      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-2573,788 N.E. 2d 1088, ¶8 citing Menifee v. Ohio
Welding Products, Inc., 15 Ohio St. 3d 75, 77, 472 N.E. 2d 707 (1984).
      {¶15} 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, 788 N.E.
2d 1121 (2nd Dist.), citing Miller v. Paulson, 97 Ohio App. 3d 217, 221, 646 N.E. 2d 521
(10th Dist. 1994); Mussivand v. David, 45 Ohio St. 3d 314, 318, 544 N.E. 2d 265 (1989).
      {¶16} 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, 76-0356-AD (1976).
      {¶17} 4)      This court in Mullett v. Department of Correction, 76-0292-AD
(1976), 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.
      {¶18} 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, 76-0368-AD (1977).
      {¶19} 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, 85-
Case No. 2012-08753-AD                    -5-                MEMORANDUM DECISION



01546-AD (1985).
       {¶20} 7)      In order to recover against a defendant in a tort action, plaintiff must
produce evidence which furnishes a reasonable basis for sustaining his claim. If his
evidence furnishes a basis for only a guess, among different possibilities, to any
essential issue in the case, he fails to sustain the burden as to such issue. Landon v.
Lee Motors, Inc., 161 Ohio St. 82, 118 N.E. 2d 147 (1954).
       {¶21} 8)      “When prison authorities obtain possession of an inmate’s property,
a bailment relationship arises between the correctional facility and the inmate. Buhrow
v. Dept. of Rehab. & Corr. (July 26, 1985), Ct. of Claims No. 85-01562-AD, unreported.
‘A bailment is defined as a delivery of something * * * by one party to another, to be held
according to the purpose or object of the delivery, and to be returned * * * when that
purpose is accomplished.’ (Footnotes omitted.) 8 Ohio Jurisprudence 3d (1978), 401,
Bailments, Section 2.” Bacote v. Ohio Department of Rehabilitation and Correction, 61
Ohio Misc. 2d 284, 578 N.E. 2d 565 (Ct. of Cl. 1988).
       {¶22} Based upon defendant’s statements, a bailment relationship was created
when defendant’s agent cut the locks off of property that plaintiff had locked for safe
keeping.
       {¶23} 9)      There is a duty to return or otherwise account for bailed property;
however, this duty is not based on negligence. The bailee is liable for not returning the
bailed property, and is excused only if it has been lost without fault or want of care.
Failure to redeliver a bailed article gives rise to an inference of negligence, and shifts
the burden to the bailee to present sufficient evidence to counterbalance this inference.
Buhrow. See also Bacote. Defendant has presented no evidence that other inmates
stole plaintiff’s property prior to defendant taking control over it. Speculation does not
satisfy defendant’s burden of proof.
       {¶24} 10)     Plaintiff’s failure to prove delivery of the Sony earbuds, calculator
Case No. 2012-08753-AD                       -6-           MEMORANDUM DECISION



and tweezers 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, 86-02821-AD (1987).
        {¶25} 11)    The credibility of witnesses and the weight attributable to their
testimony are primarily matters for the trier of fact. State v. DeHass, 10 Ohio St. 2d
230, 227 N.E. 2d 212 (1967), 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, 176 Ohio St.
61, 197 N.E. 2d 548 (1964). The court finds plaintiff’s assertions credible with regard to
the loss of the remainder of his property.
        {¶26} 12)    Negligence on the part of defendant has been shown in respect to
the issue of protecting plaintiff’s property after he was transferred to segregation.
Billups v. Department of Rehabilitation and Correction, 2000-10634-AD (2001).
        {¶27} 13)    The standard measure of damages for personal property loss is
market value. McDonald v. Ohio State Univ. Veterinary Hosp., 67 Ohio Misc. 2d 40,
644 N.E. 2d 750 (Ct. of Cl. 1994).
        {¶28} 14)    As trier of fact, this court has the power to award reasonable
damages based on evidence presented. Sims v. Southern Ohio Correctional Facility,
61 Ohio Misc. 2d 239, 577 N.E. 2d 160 (Ct. of Cl. 1988).
        {¶29} 15)    Damage assessment is a matter within the function of the trier of
fact.   Litchfield v. Morris, 25 Ohio App. 3d 42, 495 N.E. 2d 462 (10th Dist. 1985).
Reasonable certainty as to the amount of damages is required, which is that degree of
certainty of which the nature of the case admits. Bemmes v. Pub. Emp. Retirement
Sys. Of Ohio, 102 Ohio App. 3d 782, 658 N.E. 2d 31 (12th Dist. 1995).
        {¶30} 16)    Plaintiff has suffered damages in the amount of $126.43, plus the
$25.00 filing fee which may be awarded as compensable costs pursuant to R.C.
2335.19. See Bailey v. Ohio Department of Rehabilitation and Correction, 62 Ohio
Case No. 2012-08753-AD                   -7-          MEMORANDUM DECISION



Misc. 2d 19, 587 N.E. 2d 990 (Ct. of Cl. No. 1990).
[Cite as Mason v. Ohio Dept. of Rehab. & Corr., 2013-Ohio-5923.]


                                                       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




MATT MASON

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant

Case No. 2012-08753-AD

Deputy Clerk Daniel R. Borchert


ENTRY OF ADMINISTRATIVE
DETERMINATION


        All pending motions are MOOT.
        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 plaintiff in the amount of $151.43, which includes the filing fee. Court costs are
assessed against defendant.




                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:

Matt Mason, #231-446                              Stephen C. Gray, Chief Counsel
P.O. Box 69                                       Department of Rehabilitation
London, Ohio 43140-0069                           and Correction
                                770 West Broad Street
                                Columbus, Ohio 43222
DRB/laa
filed 10/30/13
sent to S.C. Reporter 1/30/14
