[Cite as Easley v. Dept. of Rehab. & Corr., 2010-Ohio-6680.]

                                       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




DAVID EASLEY

       Plaintiff

       v.

DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant

        Case No. 2009-05277-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)       Plaintiff, David Easley, an inmate incarcerated at defendant’s
Southern Ohio Correctional Facility (SOCF), filed this action alleging his personal
property was either lost or destroyed as a proximate cause of negligence on the part of
SOCF staff.        Specifically, plaintiff asserted his CD player and nineteen CDs were
destroyed by SOCF personnel without authorization and his shoes and address book
were lost when his property was packed by SOCF staff. Plaintiff claimed the property
destruction and loss occurred on or after May 8, 2009.                  Plaintiff submitted
documentation showing he purchased nineteen CDs between July 2, 2008 and August
4, 2008. The total purchase price of the CDs amounted to $186.00. Plaintiff submitted
a copy of a title to a CD player issued on February 2, 2008. The listed value of the CD
player was $48.85. Plaintiff did not provide any documentation concerning the value of
his alleged lost address book and shoes. Payment of the filing fee was waived.
        {¶ 2} 2)       Defendant denied any liability in this matter. Defendant explained
plaintiff was transferred to security control on May 8, 2008 and his personal property
was packed incident to this transfer. Defendant further explained plaintiff was placed on
“constant watch” status on May 11, 2009 and May 31, 2009 with property in his
possession being “removed until it could safely be returned to him.” Defendant provided
copies of property inventories reflecting property items possessed by plaintiff that were
delivered to SOCF staff during May 2009. The May 8, 2009 inventory shows SOCF
staff packed a CD player and ten CDs that were in plaintiff’s possession. None of the
inventories compiled during May 1009 lists any type of shoes other than “shower shoes”
or an address book. Defendant denied any SOCF employees destroyed a CD player
and CDs owned by plaintiff. Defendant submitted a copy of plaintiff’s property inventory
compiled on August 29, 2009. This inventory lists a CD player and three CDs among
plaintiff’s property.   No shoes or address book are listed on the August 29, 2009
inventory. Defendant asserted plaintiff did not offer any evidence to prove SOCF staff
ever “took shoes or an address book into its possession.” Defendant contended plaintiff
failed to produce any evidence to show any of his property was lost or destroyed while
in the custody of SOCF personnel.
                                CONCLUSIONS OF LAW
       {¶ 3} 1)     For plaintiff to prevail on a claim of negligence, he must prove, by a
preponderance of the evidence, that defendant owed him a duty, that it breached that
duty, and that the 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.
       {¶ 4} 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, 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.
       {¶ 5} 3)     If an injury is the natural and probable consequence of a negligent
act and it is such as should have been foreseen in the light of all the attending
circumstances, the injury is then the proximate result of the negligence.        It is not
necessary that the defendant should have anticipated the particular injury.          It is
sufficient that his act is likely to result in an injury to someone.” Cascone v. Herb Kay
Co. (1983), 6 Ohio St. 3d 155, 160, 6 OBR 209, 451 N.E. 2d 815, quoting Neff Lumber
Co. v. First National Bank of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171
N.E. 327.
      {¶ 6} 4)     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.
      {¶ 7} 5)     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.
      {¶ 8} 6)     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} 7)     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} 8)    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 issues, as to any issue in
the case, he fails to sustain the burden as to such issue. Landon v. Lee Motors, Inc.
(1954), 161 Ohio St. 82, 53 O.O. 25, 118 N.E. 2d 147.
      {¶ 11} 9)    Plaintiff cannot recover for property loss when he fails to produce
sufficient evidence to establish defendant actually assumed control over the property.
Whiteside v. Orient Correctional Inst., Ct. of Cl. No. 2002-05751, 2005-Ohio-4455 obj.
overruled, 2005-Ohio-5068. Plaintiff failed to prove defendant actually exercised control
over shoes or an address book.
      {¶ 12} 10) Plaintiff’s failure to prove delivery of the above listed 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.
      {¶ 13} 11) 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 does not find
plaintiff’s assertions particularly persuasive regarding his claims of property loss and
destruction.
       {¶ 14} 12) Plaintiff has failed to show any causal connection between any loss
of his property listed and any breach of a duty owed by defendant in regard to protecting
inmate property. Druckenmiller v. Mansfield Correctional Inst. (1998), 97-11819-AD;
Melson v. Ohio Department of Rehabilitation and Correction (2003), Ct. of Cl. No. 2003-
04236-AD, 2003-Ohio-3615.
       {¶ 15} 13) Plaintiff has failed to prove, by a preponderance of the evidence, any
of his property was lost or destroyed as a proximate result of any negligent conduct
attributable to defendant. Fitzgerald v. Department of Rehabilitation and Correction
(1998), 97-10146-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




DAVID EASLEY

      Plaintiff

      v.

DEPARTMENT OF REHABILITATION AND CORRECTION

      Defendant
         Case No. 2009-05277-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:

David Easley, #306-400                            Gregory C. Trout, Chief Counsel
P.O. Box 45699                                    Department of Rehabilitation
Lucasville, Ohio 45699                            and Correction
                                                  770 West Broad Street
                                                  Columbus, Ohio 43222
RDK/laa
12/14
Filed 12/17/10
Sent to S.C. reporter 2/25/11
