[Cite as Kennedy v. Madison Correctional Inst., 2011-Ohio-3441.]

                                      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




PATRICK KENNEDY

       Plaintiff

       v.

MADISON CORRECTIONAL INSTITUTION

       Defendant

        Case No. 2010-10157-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


                                         FINDINGS OF FACT
        {¶ 1} On May 20, 2009, plaintiff, Patrick Kennedy, an inmate incarcerated at
defendant, Madison Correctional Institution (MaCI), was transferred from the general
population to a segregation unit. Plaintiff alleged that before he was handcuffed, he
was instructed by a corrections officer (CO) to place the items he was holding, a
mechanical pencil, a notepad, and a cup, on the CO’s desk and that these items were
not packed with his other property and were either lost or stolen. In addition, plaintiff
alleged that at sometime during the transfer procedure unidentified inmates entered his
cell and stole several items of his personal property. Plaintiff related the stolen property
included: three mechanical pencils and one power cord.              Plaintiff then listed the
following unreported missing items: two locker mirrors, one book light, one state belt,
replacement lead black, replacement lead red, plastic antenna holder, scented oil,
masking tape, eraser x-large, artists ink & pencil eraser, twenty-four assorted binder
clips, one butterscotch disks, one orange slices, one pepperoni, one pizza kit, and two
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Case No. 2006-03532-AD                    -2-                MEMORANDUM DECISION



mozzarella cheeses. Additionally, plaintiff requested unspecified damages for the cost
of copies, postage and legal assistance.        Postage and copying expenses are not
compensable in a claim of this type. The request to include these expenses in the
damage claim is denied and shall not be further addressed.
       {¶ 2} Plaintiff implied his property was stolen as a proximate cause of
negligence on the part of MaCI staff in failing to adequately protect the property from
theft attempts.   Plaintiff filed this complaint seeking to recover $86.30, the stated
replacement cost of his alleged stolen property. The filing fee was paid.
       {¶ 3} Defendant denied any liability in this matter contending plaintiff failed to
offer any evidence to prove his property was stolen as a proximate result of any
negligent conduct on the part of defendant. Defendant denied ever exercising control
over any of the alleged stolen property items. Defendant argued no evidence has been
offered to establish plaintiff suffered property loss as a result of any act attributable to
MaCI personnel. Defendant advised MaCI staff searched for plaintiff's property but did
not locate any of the alleged missing items.
       {¶ 4} Plaintiff filed a response essentially reiterating the allegations made in the
complaint.
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                               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)     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.
      {¶ 9} 5)     Plaintiff's failure to prove delivery of the claimed missing 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.
      {¶ 10} 6)    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.
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      {¶ 11} 7)   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.
      {¶ 12} 8)   "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;
      {¶ 13} 9)   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 (1985), 84-02425. Plaintiff
must show defendant breached a duty or ordinary or reasonable care. Williams.
      {¶ 14} 10) 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.
      {¶ 15} 11) The fact defendant supplied plaintiff with a locker box to secure
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valuables constitutes prima facie evidence of defendant discharging its duty of
reasonable care. Watson v. Department of Rehabilitation and Correction (1987), 86-
02635-AD.
       {¶ 16} 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
Correctional Facility (1981), 79-0132-AD; Russell v. Warren Correctional Inst. (1999),
98-03305-AD.
       {¶ 17} 13) Plaintiff may show defendant breached its duty of reasonable care by
providing evidence of an unreasonable delay in packing inmate property. Springer v.
Marion Correctional Institution (1981), 81-05202-AD.
       {¶ 18} 14) However, in the instant claim, plaintiff has failed to prove any delay in
packing his inmate property resulted in any property theft. Stevens v. Warren
Correctional Institution (2000), 2000-05142-AD.
       {¶ 19} 15) Moreover, 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. In the instant case, the
claimed stolen property was indistinguishable and, therefore, despite the fact that
defendant conducted a fruitless search, no duty to search arose. Wallace v. Grafton
Corr. Inst., Ct. of Cl. No. 2009-01743, 2009-Ohio-5741.
       {¶ 20} 16) 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.
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Case No. 2006-03532-AD                  -6-              MEMORANDUM DECISION



2005-11094-AD, 2006-Ohio-7207.
      {¶ 21} 17) Plaintiff has failed to prove, by a preponderance of the evidence, 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.




                              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




PATRICK KENNEDY

      Plaintiff
Case No. 2006-03532-AD                    -7-               MEMORANDUM DECISION



        v.

MADISON CORRECTIONAL INSTITUTION

        Defendant

        Case No. 2010-10157-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:

Patrick Kennedy, #393-577                        Gregory C. Trout, Chief Counsel
1851 St. Rt. 56                                  Department of Rehabilitation
P.O. Box 740                                     and Correction
London, Ohio 43140-0740                          770 West Broad Street
                                                 Columbus, Ohio 43222
SJM/laa
3/18
Filed 3/31/11
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Case No. 2006-03532-AD          -8-   MEMORANDUM DECISION



Sent to S.C. reporter 6/30/11
