[Cite as Whitaker v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-3930.]

                                      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




ARTHUR WHITAKER

       Plaintiff

       v.

OHIO DEPT. REHABILITATION AND CORRECTION

       Defendant

        Case No. 2009-07644-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                         FINDINGS OF FACT
        {¶ 1} 1)       On October 13, 2008, plaintiff, Arthur Whitaker, an inmate
incarcerated at defendant’s Mansfield Correctional Institution (ManCI), was transferred
from the ManCI general population to segregation unit. Plaintiff was permitted to pack
his personal property incident to his transfer, but he was unable to complete the packing
due to the fact he was not provided any bags to secure the property. According to
plaintiff, his personal property was then packed by ManCI staff.
        {¶ 2} 2)       Plaintiff advised his packed property was taken to a storage room
and left there until December 3, 2008 when the items were then moved to the ManCI
property vault. Plaintiff pointed out that when he subsequently regained possession of
his property he discovered several items were missing including his GPX radio/CD
player, a blue blanket, three blue towels, three bars of soap, one pouch of tobacco, and
one mouth guard. Plaintiff contended his property was lost or stolen while under the
control fo ManCI personnel and he consequently filed this complaint seeking to recover
damages in the amount of $128.10, the stated replacement cost of the alleged missing
property. Plaintiff specifically listed the value of the items as follows: radio/CD player-
$60, blanket-$40.00, towels-$21.00, soap-$1.20, tobacco $.90, mouth guard-$5.00.
Payment of the $25.00 filing fee was waived.
       {¶ 3} 3)      Plaintiff submitted a copy of his “Inmate Property Record” inventory
compiled on October 13, 2008 when he was transferred and his property was packed.
This inventory lists all the property items plaintiff claimed were missing when he
regained possession of his property.
       {¶ 4} 4)      Defendant filed an investigation report admitting liability for the loss of
plaintiff’s radio/CD player.    Defendant disputed plaintiff’s valuation of this item and
related “that a reasonable value of a used CD player is $20.00.” Evidence in the form of
a title for a GPX CD player was provided by plaintiff. Plaintiff was first issued a title for a
GPX CD player on July 16, 2007 and the title submitted does not list any monetary
value for this item. Plaintiff did not produce a receipt establishing the original purchase
price of this titled item.
       {¶ 5} 5)      Defendant denied liability for the remaining property contending
plaintiff did not offer any proof to establish he was the rightful owner of a blanket, three
towels, soap, tobacco, and a mouth guard. Defendant argued plaintiff cannot recover
the value of the lost property in a situation where ownership has not been proven.
Defendant acknowledged that the property ManCI staff packed on October 13, 2008
was not properly stored. Defendant also acknowledged some of the property items that
were improperly stored were missing when moved to the ManCI vault on December 3,
2008 and reinventoried (see “Disposition of Grievance” December 23, 2008 copy
attached to investigation report).
       {¶ 6} 6)      Plaintiff filed a response insisting he owned all the property items
claimed. Plaintiff related he purchased his towels and blanket from an approved vendor
at sometime between May and October 2004. Plaintiff asserted he purchased soap and
tobacco at the ManCI commissary.
                                  CONCLUSIONS OF LAW
Case No. 2006-03532-AD                   -3-               MEMORANDUM DECISION




Case No. 2006-03532-AD                   -3-               MEMORANDUM DECISION



      {¶ 7} 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,¶8 citing Menifee v. Ohio Welding Products,
Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707.
      {¶ 8} 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, 798 N.E.
2d 1121, ¶41, citing Miller v. Paulson (1994), 97 Ohio App. 3d 217, 221, 646 N.E. 2d
521; Mussivand v. David (1989), 45 Ohio St. 3d 314, 318, 544 N.E. 2d 265.
      {¶ 9} 3)     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.
      {¶ 10} 4)    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.
       {¶ 11} 5)   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.
       {¶ 12} 6)   This court has previously held that property in an inmate’s
possession which cannot be validated by proper indicia of ownership is contraband and
consequently, no recovery is permitted when such property is lost.            Wheaton v.
Department of Rehabilitation and Correction (1988), 88-04899-AD.
       {¶ 13} 7)   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. The court finds plaintiff’s
assertions persuasive regarding the fact he owned all the items claimed.
       {¶ 14} 8)   Negligence on the part of defendant has been shown in respect to
the issue protecting plaintiff’s property after the transfer.   Billups v. Department of
Rehabilitation and Correction (2001), 2000-10634-AD, jud.
       {¶ 15} 9)   As trier of fact, this court has the power to award reasonable
damages based on evidence presented. Sims v. Southern Ohio Correctional Facility
(1988), 61 Ohio Misc. 2d 239, 577 N.E. 2d 160. Many property items were used and
consequently had depreciated in value.
       {¶ 16} 10) Damage assessment is a matter within the function of the trier of fact.
Litchfield v. Morris (1985), 25 Ohio App. 3d 42, 25 OBR 115, 495 N.E. 2d 462.
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 (1995), 102 Ohio App. 3d 782, 658 N.E. 2d 31. Plaintiff has suffered
damages in the amount of $60.00.
Case No. 2006-03532-AD            -5-      MEMORANDUM DECISION




Case No. 2006-03532-AD            -5-      MEMORANDUM DECISION




                             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




ARTHUR WHITAKER

      Plaintiff

      v.

OHIO DEPT. REHABILITATION AND CORRECTION

      Defendant

      Case No. 2009-07644-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 plaintiff in the amount of $60.00. Court costs are assessed against defendant.




                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:

Arthur Whitaker, #301-186                         Gregory C. Trout, Chief Counsel
5701 Burnett Road                                 Department of Rehabilitation
P.O. Box 901                                      and Correction
Leavittsburg, Ohio 44430                          770 West Broad Street
                                                  Columbus, Ohio 43222

RDK/laa
4/12
Filed 4/21/10
Sent to S.C. reporter 8/20/10
