[Cite as Lukacs v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-3537.]

                                      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




CHRISTOPHER LUKACS

       Plaintiff

       v.

OHIO DEPT. OF REHAB. AND CORR.

       Defendant

        Case No. 2010-08951-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                         FINDINGS OF FACT
        {¶ 1} 1)       Plaintiff, Christopher Lukacs, an inmate under the custody of
defendant, Department of Rehabilitation and Correction (DRC), filed this action alleging
property was stolen from his cell on or about October 13, 2009 when he was
incarcerated at defendant’s Mansfield Correctional Institution (ManCI).                     Plaintiff
recorded he was transferred from the ManCI general population to a segregation unit on
October 12, 2009 and his personal property was left in his cell. Apparently ManCI staff
entered plaintiff’s cell on October 15, 2009 and packed his property; completing an
inventory of the items stored there. Plaintiff asserted that at sometime after he was
transferred to segregation and the period his property was packed, unidentified inmates
gained access to his cell and stole multiple items secured inside. According to plaintiff,
the alleged stolen property included a trial transcript, “a package containing electronics,”
which included a television set, and “the entire contents of a package containing sundry
items.”     Plaintiff related his television set “was recovered but damaged.”               Plaintiff
contended his property was stolen as a proximate cause of negligence on the part of
ManCI staff in leaving his cell door unlocked and delaying to pack the items stored in his
cell. In his complaint, plaintiff requested damage recovery in the amount of $2,460.17,
the stated replacement cost of the alleged stolen and damaged property. Payment of
the filing fee was waived.
        {¶ 2} 2)    Defendant asserted plaintiff has failed to offer any evidence to prove
his property was stolen and unrecovered as a result of any negligent act or omission on
the part of ManCI staff. Defendant specifically denied plaintiff’s cell door was unsecured
when he was initially transferred to a segregation unit on October 17, 2009. Defendant
explained plaintiff was initially removed from his cell on October 12, 2009 after he was
observed “exhibiting odd behavior.” According to defendant, plaintiff had strewn a small
amount of property on the cell floor and had stood his bed up on end; thereby
barricading himself in the cell. Plaintiff apparently refused to come out of his cell when
ordered and consequently, he was forcibly removed from the cell block to a segregation
unit.   Defendant advised plaintiff’s cell was then ordered to be locked and the cell
remained locked until October 15, 2009 when ManCI personnel packed the property
stored there.      Defendant noted ManCI staff “cannot determine whether plaintiff
entrusted his property to another inmate, it was stolen, or he made another disposition
of his property prior to the incident of 10/12.” Defendant maintained that all property
that was inside plaintiff’s cell on October 12, 2009 was secured in a locked cell until
October 15, 2009 when the property was packed. Defendant pointed out plaintiff was
housed in a single cell and did not have a cellmate.
        {¶ 3} 3)    Plaintiff filed a response insisting his property was stolen as a direct
result of ManCI staff in packing the items that remained in his cell when he was
transferred on October 12, 2009. Plaintiff disputed defendant’s assertion that his cell
remained locked from October 12, 2009 to October 15, 2009 when a pack up of the
items stored inside occurred.      Plaintiff reasserted that all property claimed in his
complaint was stolen from his cell after October 12, 2009.
                                CONCLUSIONS OF LAW
        {¶ 4} 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.
      {¶ 5} 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.
      {¶ 6} 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.
      {¶ 7} 4)     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} 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.
      {¶ 9} 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.
      {¶ 10} 7)    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 the
evidence furnishes a basis for only a guess, among different possibilities, as to any
essential 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} 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 of ordinary or reasonable care. Williams.
      {¶ 12} 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.
      {¶ 13} 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 possessions in the cell while they are absent from the cell. Smith v.
Rehabilitation and Correction (1978), 77-0440-AD.
       {¶ 14} 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.
       {¶ 15} 12) 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 in reference to any theft of his property
actually took place. The trier of fact does not believe plaintiff’s assertions regarding a
property theft on October 13, 2009 or after that date.
       {¶ 16} 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.
       {¶ 17} 14) In the instant claim, plaintiff has failed to prove any delay in packing
his property resulted in any property theft. Stevens v. Warren Correctional Institution
(2000), 2000-05142-AD; Knowlton v. Noble Corr. Inst., Ct. of Cl. No. 2005-06678-AD,
2005-Ohio-4328.
       {¶ 18} 15) Plaintiff has failed to prove, by a preponderance of the evidence, any
of his property was stolen 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




CHRISTOPHER LUKACS

        Plaintiff

        v.

OHIO DEPT. OF REHAB. AND CORR.

        Defendant

         Case No. 2010-08951-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:

Christopher Lukacs, #605-630                      Gregory C. Trout, Chief Counsel
1724 St. Rt. 728                                  Department of Rehabilitation
Lucasville, Ohio 45699                            and Correction
                                                  770 West Broad Street
                                                  Columbus, Ohio 43222
RDK/laa
3/10
Filed 4/7/11
Sent to S.C. reporter 7/8/11
