[Cite as Copley v. S. Ohio Correctional Facility, 2009-Ohio-6358.]

                                       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




SCOTT COPLEY

        Plaintiff

        v.

SOUTHERN OHIO CORRECTIONAL FACILITY

        Defendant

        Case No. 2009-01450-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)          On or about February 7, 2008, plaintiff, Scott Copley, an inmate
formerly incarcerated at defendant, Southern Ohio Correctional Facility (“SOCF”), was
transferred from the SOCF general population to a segregation unit. Incident to the
transfer SOCF employee Sgt. Pearson confiscated fifteen compact discs from plaintiff’s
possession. Plaintiff was issued a conduct report for possessing property in excess of
limits defined by defendant’s internal policy. Neither plaintiff nor defendant produced a
copy of the conduct report.
        {¶ 2} 2)          Plaintiff pointed out that after he was issued the conduct report he
reached a compromise with Sgt. Pearson where it was agreed five compact discs would
be returned to his possession and ten compact discs would be mailed outside SOCF to
an address designated by plaintiff. Plaintiff asserted Sgt. Pearson did not abide by the
purported agreement and apparently destroyed nine of the confiscated compact discs.
Plaintiff denied he ever gave any SOCF personnel permission to destroy confiscated
compact discs.         Plaintiff contended his compact discs were destroyed without any
authority on the part of SOCF staff. Consequently, plaintiff filed this complaint seeking
to recover $120.02, the total replacement cost of nine compact discs. Plaintiff was not
required to pay a filing fee.
       {¶ 3} 3)       Defendant admitted liability for the loss of five compact discs in the
amount of $60.00.      Defendant acknowledged an indeterminate number of compact
discs were confiscated from plaintiff’s possession due to the fact he possessed an
excessive number of compact discs. Internal policy limits compact disc possession to
ten. Defendant submitted a copy of plaintiff’s property inventory compiled on June 18,
2008, when he was transferred from SOCF to the Ohio State Penitentiary (“OSP”). This
inventory lists twelve compact discs.      Defendant also submitted copies of “Informal
Complaints” plaintiff filed in connection with the confiscation of compact discs. The
“Informal Complaints” dated April 4, 2008, July 19, 2008, and September 15, 2008 all
contain notations from plaintiff that he claimed SOCF employee Sgt. Pearson
confiscated fifteen compact discs and did not return any of the confiscated items.
Defendant submitted a copy of a “Hearing Officer Report” completed by SOCF
employee, Michael P. Pearson dated February 12, 2008, which reflects the charges
against plaintiff of possessing excess property in violation of internal policy.       The
“Hearing Officer Report” contains a finding that plaintiff was found “guilty of having over
the limit contraband” and bears a disposition record by the Hearing Officer, Michael P.
Pearson that the confiscated property items including the compact discs were to be
destroyed. Defendant did not submit any record indicating property confiscated from
plaintiff was formally forfeited. Defendant suggested the twelve compact discs plaintiff
possessed when he was transferred to OSP included some of the compact discs that
were confiscated on February 7, 2008 and subsequently ordered destroyed pursuant to
the February 12, 2008 “Hearing Officer Report.”           Defendant did not submit any
document to verify any confiscated property was returned to plaintiff.
       {¶ 4} 4)       Plaintiff filed a response relating he possessed twenty-five compact
discs at the time fifteen were confiscated in February 2008. Plaintiff denied the twelve
compact discs he possessed when he was transferred to OSP included any of the
confiscated compact discs.       Plaintiff insisted defendant should bear liability for all
property claimed and damaged amounting to $120.02.
                                 CONCLUSIONS OF LAW
       {¶ 5} 1)      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.
       {¶ 6} 2)      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} 3)      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.
       {¶ 8} 4)      An inmate plaintiff may recover the value of confiscated property
destroyed by agents of defendant when those agents acted without authority or right to
carry out the property destruction. Berg v. Belmont Correctional Institution (1998), 97-
09261-AD. Plaintiff has proven defendant did not have the authority or right to destroy
the property claimed.
       {¶ 9} 5)      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 the statements offered by plaintiff concerning the confiscation and
subsequent destruction of all property claimed are persuasive.
       {¶ 10} 6)     Negligence on the part of defendant has been shown in respect to
the issue of property protection of plaintiff’s confiscated items. Billups v. Department of
Rehabilitation and Correction (2001), 2000-10634-AD.
       {¶ 11} 7)     Negligence on the part of defendant has been shown in respect to
all property claimed. Baisden v. Southern Ohio Correctional Facility (1977), 76-0617-
AD.
       {¶ 12} 8)     As trier of fact, this court has the power to award reasonable
damages based on evidence presented. Baisden v. Southern Ohio Correctional Facility
(1977), 76-0617-AD.
       {¶ 13} 9)     Defendant is liable to plaintiff for property loss in the amount of
$120.02.




                              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




SCOTT COPLEY

      Plaintiff

      v.

SOUTHERN OHIO CORRECTIONAL FACILITY

      Defendant

      Case No. 2009-01450-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 $120.02. Court costs are assessed against defendant.




                                               DANIEL R. BORCHERT
                                               Deputy Clerk

Entry cc:
Scott Copley, #468-120          Gregory C. Trout, Chief Counsel
878 Coitsville-Hubbard Road     Department of Rehabilitation
Youngstown, Ohio 44505          and Correction
                                770 West Broad Street
                                Columbus, Ohio 43222

RDK/laa
7/13
Filed 7/23/09
Sent to S.C. reporter 12/4/09
