[Cite as Curry v. Ohio State Penitentiary, 2011-Ohio-2892.]

                                       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




GREG CURRY

        Plaintiff

        v.

OHIO STATE PENITENTIARY

        Defendant

Case No. 2010-10424-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)       Plaintiff, Greg Curry, an inmate incarcerated at defendant, Ohio State
Penitentiary (OSP), alleged several items of his personal property were confiscated by
OSP staff on or about February 25, 2010 and subsequently destroyed without any
authorization. Plaintiff explained the alleged confiscated property included 25 coffee, 2
peanut butter, 2 Muslim oil, 4 Tone soap, 4 Dial soap, 2 Ivory soap, 2 B.B.Q. sauce, 20
Cool Ranch dressing, 3 Crest toothpaste, 25 seafood, 4 pickle, 3 deck of playing cards,
2 cheese bits, 15 ramen soup, 2 soap powder, 2 AA batteries, 20 danish, 22 cheesy
beans & rice, 10 shabang chips, 2 big bag of sour starburst, 1 chili bean sauce, and a
digital antenna.        Plaintiff further asserts OSP staff confiscated and destroyed 41
embossed envelopes and a pair of Koss headphones on March 3, 2010.                         Plaintiff
maintained the headphones were brand new and had not been altered. Plaintiff filed
this complaint seeking to recover $283.49, the estimated value of the above listed
property items. With his complaint, plaintiff submitted a receipt for one set of Koss
headphones (dated June 18, 2008), and multiple OSP commissary receipts for various
food and hygiene items (dated March 11, May 20, June 17, July 15, August 12,
September 9, October 21, November 18, and December 16, 2009, and another dated
February 10, 2010). The $25.00 filing fee was paid.
       {¶ 2} 2)    Defendant acknowledged OSP staff confiscated items over the
allowable property limit on February 25, 2010.      Defendant declared plaintiff was in
possession of an altered pair of headphones and an excessive amount of commissary
for which he had no valid receipt. Defendant issued plaintiff a “Conduct Report” for
possession of contraband and for possession of property of another. No evidence was
submitted to establish the disposition of the property confiscated from plaintiff’s
possession on February 25, 2010. Defendant submitted a copy of another “Conduct
Report” issued on March 4, 2009 charging plaintiff with possession of contraband,
including possession of an altered cassette player.    The investigation report prepared
by the OSP institutional inspector states “OSP did confiscate and destroy $28.71 of
property that should not have been taken as contraband.” Defendant admitted liability
for $28.71 in damaged goods but asserted plaintiff “accepted and signed a release
claim for 25 envelopes, the equivalent of the amount owed to Plaintiff.”
       {¶ 3} 3)    Plaintiff filed a response contending he owned the property that was
confiscated and destroyed without any authorization by defendant. In addition, plaintiff
insisted the release he signed for 25 envelopes related to a property loss that occurred
on or about May 14, 2010, and as such, has nothing to do with the matters asserted in
this claim.
                               CONCLUSIONS OF LAW
       {¶ 4} 1)    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.
       {¶ 5} 2)    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.
       {¶ 6} 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.
       {¶ 7} 4)      Prison   regulations,   including   those   contained   in   the   Ohio
Administrative Code, are “primarily designed to guide correctional officials in prison
administration rather than to confer rights on inmates. State ex rel. Larkins v. Wilkinson,
79 Ohio St. 3d 477, 1997-Ohio-139, 683 N.E. 2d 1139, citing Sandin v. Conner (1995),
515 U.S. 472, 481-482, 115 S. Ct. 2293, 132 L. Ed. 2d 419. Additionally, this court held
that “even if defendant had violated the Ohio Administrative Code, no cause of action
would exist in this court. A breach of internal regulations in itself does not constitute
negligence.” Williams v. Ohio Dept. of Rehab. and Corr. (1993), 67 Ohio Misc. 2d 1, 3,
643 N.E. 2d 1182. Accordingly, to the extent plaintiff alleges that OSP staff failed to
comply with internal prison regulations and the Ohio Administrative Code, he fails to
state a claim for relief.
       {¶ 8} 5)      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.
       {¶ 9} 6)      “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; and Mussivand v.
David (1989), 45 Ohio St. 3d 314, 318, 544 N.E. 2d 265.
       {¶ 10} 7)     It has been previously held, an inmate plaintiff may recover the value
of confiscated contraband 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; Wooden v. Ohio Dept. of Rehab.
& Corr., Ct. of Cl. No. 2004-01958-AD, 2004-Ohio-4820; Hemsley v. N. Cent.
Correctional Inst., Ct. of Cl. No. 2005-03946-AD, 2005-Ohio-4613; Mayfield v. Richland
Correctional Inst., Ct. of Cl. No. 2005-07976-AD, 2006-Ohio-358.
       {¶ 11} 8)     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 particular persuasive in regard to the fact he was the rightful owner
of all of the confiscated property.
       {¶ 12} 9)   Plaintiff has no right to pursue a claim for destroyed property in which
he cannot prove any right of ownership. DeLong v. Department of Rehabilitation and
Correction (1988), 88-06000-AD.       Defendant cannot be held liable for contraband
property that plaintiff has no right to possess.           Beaverson v. Department of
Rehabilitation and Correction (1988), 87-02540-AD; Radford v. Department of
Rehabilitation and Correction (1985), 84-09071.
       {¶ 13} 10) An inmate maintains no right of ownership in property which is
impermissibly altered and therefore, has no right to recovery when the altered property
is lost or destroyed. Watley v. Ohio Department of Rehabilitation and Correction, Ct. of
Cl. No. 2005-05183-AD, jud, 2005-Ohio-4320; Watson v. Ohio State Penitentiary, Ct. of
Cl. No. 2007-05229-AD, 2008-Ohio-2848.
       {¶ 14} 11) Evidence has shown some confiscated property was altered and
consequently was considered impermissible. No recovery can be had for the loss or
destruction of impermissible altered property. See Kemp v. Ohio State Penitentiary, Ct.
of Cl. No. 2006-02587-AD, 2006-Ohio-7247.
       {¶ 15} 12) Negligence on the part of defendant has been shown in respect to a
portion of the property claimed. Baisden v. Southern Ohio Correctional Facility (1977),
76-0617-AD.
       {¶ 16} 13) The assessment of damages is a matter within the province of the
trier of fact. Litchfield v. Morris (1985), 25 Ohio App. 3d 42, 25 OBR 115, 495 N.E. 2d
462.
       {¶ 17} 14) 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.
       {¶ 18} 15) Defendant is liable to plaintiff for property loss in the amount of
$28.71, plus the $25.00 filing fee which may be reimbursed as compensable costs
pursuant to R.C. 2335.19.       See Bailey v. Ohio Department of Rehabilitation and
Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.
                              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




GREG CURRY

      Plaintiff

      v.

OHIO STATE PENITENTIARY

      Defendant

Case No. 2010-10424-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 $53.71, which includes the filing fee.       Court costs are
assessed against defendant.




                                        DANIEL R. BORCHERT
                                        Deputy Clerk

Entry cc:

Greg Curry, #213-59                     Gregory C. Trout, Chief Counsel
878 Coitsville-Hubbard Road             Department of Rehabilitation
Youngstown, Ohio 44505                  and Correction
                                        770 West Broad Street
                               Columbus, Ohio 43222
SJM/laa
3/14
Filed 3/25/11
Sent to S.C. reporter 6/9/11
