[Cite as Brady v. Lebanon Correctional Inst., 2010-Ohio-5456.]

                                      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 BRADY

       Plaintiff

       v.

LEBANON CORRECTIONAL INSTITUTION

       Defendant

        Case No. 2010-01743-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                         FINDINGS OF FACT
        {¶ 1} 1)       Plaintiff, David Brady, an inmate incarcerated at defendant, Lebanon
Correctional Institution (LeCI), alleged his radio, television antenna, and converter box
were stolen from his cell housing unit on June 30, 2009 at a time when he and his
cellmate, Thomas Nolde, were away from the unit. Plaintiff recalled he and Nolde left
the cell (1-B-16) at approximately 7:15 a.m. on June 30, 2009 to go to work. Plaintiff
further recalled he “secured” the cell door when he and Nolde left and requested that
the LeCI officer on duty, Askew “to deadlock our door.” Plaintiff pointed out that when
he returned from work at approximately 10:10 a.m. he discovered property items were
missing from his cell. Plaintiff recorded the cell door was locked when he and Nolde
returned, yet at some time during their absence property stored in the cell had been
stolen. Plaintiff suggested Officer Askew had unlocked the cell door thereby facilitating
the theft of his property. Plaintiff asserted no LeCI staff conducted any search for his
converter box, radio, and antenna after he reported the theft. Plaintiff contended his
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Case No. 2006-03532-AD                       -2-               MEMORANDUM DECISION



property was stolen and unrecovered as a proximate cause of negligence on the part of
LeCI personnel in unlocking his cell door and failing to conduct a proper search for the
reported stolen items. Consequently, plaintiff filed this complaint seeking to recover
$126.70, the total replacement cost of the property claimed. Payment of the filing fee
was waived.
       {¶ 2} 2)        Plaintiff submitted a written statement from a fellow inmate, Dean
Barnett, who is housed in the same cellblock as plaintiff and Nolde. Barnett wrote “I am
aware that the cell door (1-B-16) was unlocked on 6-30-09 when I came back from my
assigned job in the legal library at approximately 9:00 a.m., to retrieve some paperwork
necessary at work.” Barnett also noted that he “was aware of several complaints on
that day (6-30-09) of cell doors being opened while the occupants were away.”
Furthermore, Barnett pointed out LeCI “relief officers” routinely open cell doors on the
“entire cell range.”
       {¶ 3} 3)        Plaintiff submitted an additional written statement from his cellmate,
Thomas Nolde who reported a request was made to Officer Askew on June 30, 2009 to
deadlock the cell door of cell 1-B-16. Nolde also indicated the cell door of 1-B-16 was
secured on June 30, 2009 before he and plaintiff left the unit to go to work.
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      {¶ 4} 4)     Plaintiff submitted a copy of an “Inmate Property/Theft Report” (Theft
Report) that was filed incident to his reporting the theft.     According to information
contained in the Theft Report, LeCI employee Officer Steel “conducted several cell
searches” after 10:05 a.m. on June 30, 2009. Officer A. Baker, the LeCI employee who
compiled the Theft Report, denied opening any cell doors “to let anyone in.”
      {¶ 5} 5)     Defendant denied liability in this matter contending plaintiff “offered
no specific proof regarding his allegations that the corrections officer let another inmate
into his cell.” Defendant advised that the LeCI employees on duty were interviewed and
they denied opening the cell door at 1-B-16. The employees on duty were identified as
Officer Imfield and Officer Askew. Defendant did not submit any statements from either
Officer Imfield or Officer Askew. Defendant referenced a “report from LeCI Inspector of
Institutional Services” regarding the instant action. However, the claim file is devoid of
an Inspector’s report. Defendant argued that plaintiff failed to prove his cell door was
unlocked by any LeCI employee, thereby facilitating a theft. Defendant denied the cell
door was opened by any LeCI staff.
      {¶ 6} 6)     Plaintiff filed a response insisting his cell door was improperly opened
by defendant’s employee; an act that allowed an unidentified individual access to the
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Case No. 2006-03532-AD                    -4-              MEMORANDUM DECISION



property stored inside.     Plaintiff contended defendant failed to conduct a proper
investigation after the theft was reported.
                                CONCLUSIONS OF LAW
       {¶ 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,¶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)    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.
       {¶ 10} 4)   This court in Mullett v. Department of Correction (1976), 76-0292-AD,
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Case No. 2006-03532-AD                   -5-                MEMORANDUM DECISION



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.
       {¶ 11} 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.
       {¶ 12} 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.
       {¶ 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 does not find
plaintiff’s assertions particularly persuasive as well as the assertions of Dean Barnett
and Thomas Nolde.
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       {¶ 14} 8)   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 or ordinary or reasonable care. Williams.
       {¶ 15} 9)   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.
       {¶ 16} 10) Defendant, when it retains control over whether an inmate’s cell door
is to be open or closed, owes a duty of reasonable care to inmates who are exclusively
forced to store their possession in the cell while they are absent from the cell. Smith v.
Rehabilitation and Correction (1978), 77-0440-AD.
       {¶ 17} 11) However, in the instant claim, plaintiff has failed to prove defendant
negligently or intentionally unlocked his cell door, and therefore, no liability shall attach
to defendant as a result of any theft based on this contention. Carrithers v. Southern
Ohio Correctional Facility (2002), 2001-09079-AD.
       {¶ 18} 12) Generally, defendant has a duty to conduct a search for plaintiff’s
property within a reasonable time after being notified of the theft. Phillips v. Columbus
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Case No. 2006-03532-AD                     -7-                MEMORANDUM DECISION



Correctional Facility (1981), 79-0132-AD; Russell v. Warren Correctional Inst. (1999),
98-03305-AD.
       {¶ 19} 13) However, a search is not always necessary.             In Copeland v.
Department of Rehabilitation and Correction (1985), 85-03638-AD, the court held that
defendant had no duty to search for missing property if the nature of the property is
such that it is indistinguishable and cannot be traced to plaintiff.
       {¶ 20} 14) Plaintiff has failed to prove, by a preponderance of the evidence, that
defendant was negligent in respect to making any attempts to recover distinguishable or
indistinguishable stolen property. See Williams v. Dept. of Rehab. & Corr., Ct. of Cl. No.
2005-11094-AD, 2006-Ohio-7207.
       {¶ 21} 15) Plaintiff has failed to prove, by a preponderance of the evidence, that
any of his property was stolen or unrecovered as a proximate result of any negligent
conduct attributable to defendant.       Fitzgerald v. Department of Rehabilitation and
Correction (1998), 97-10146-AD; Hall v. London Correctional Inst., Ct. of Cl. No. 2008-
04803-AD, 2008-Ohio-7088.
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Case No. 2006-03532-AD            -8-   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




DAVID BRADY

      Plaintiff

      v.

LEBANON CORRECTIONAL INSTITUTION

      Defendant

      Case No. 2010-01743-AD

Deputy Clerk Daniel R. Borchert
Case No. 2006-03532-AD                      -9-               MEMORANDUM DECISION




Case No. 2006-03532-AD                      -9-               MEMORANDUM DECISION




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 Brady, #516-491                              Gregory C. Trout, Chief Counsel
3791 State Route #63                               Department of Rehabilitation
Lebanon, Ohio 45036-0056                           and Correction
                                                   770 West Broad Street
                                                   Columbus, Ohio 43222
RDK/laa
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Case No. 2006-03532-AD          - 10 -   MEMORANDUM DECISION



6/9
Filed 7/20/10
Sent to S.C. reporter 11/5/10
