[Cite as Isaac v. Dept. of Rehab. & Corr., 2010-Ohio-5468.]

                                       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




JOSHUA ISAAC

        Plaintiff

        v.

DEPT. REHABILITATION AND CORRECTION

        Defendant

Case No. 2010-04203-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION




                                          FINDINGS OF FACT
        {¶ 1} 1)       On July 4, 2009, plaintiff, Joshua Isaac, an inmate incarcerated at
defendant’s Southern Ohio Correctional Facility (SOCF), was transferred from the
SOCF general population to a security control unit. Plaintiff’s personal property was
inventoried, packed, and delivered into the custody of SOCF staff incident to his
transfer. Plaintiff asserted SOCF personnel failed to pack all his property and when he
regained possession of the property on July 8, 2009 he discovered several items were
missing.
        {¶ 2} 2)       Plaintiff noted the following items were lost or misplaced while under
the control of SOCF personnel: eighty-three photographs, legal mail, one t-shirt, one
pair of blue shorts, three bars of soap, one bowl, personal mail, and hygiene. Plaintiff
filed this complaint seeking to recover $2,500.00, the stated value of the alleged missing
property. Plaintiff did not provide any evidence other than his own assertion to establish
the value of the claimed missing property. Payment of the filing fee was waived.
       {¶ 3} 3)     Defendant denied any liability in this matter. Defendant contended
plaintiff failed to offer sufficient evidence to prove his property was lost as a proximate
cause of negligence on the part of SOCF staff. Defendant acknowledged plaintiff was
placed in a security control unit on July 4, 2009 and his property was packed.
Defendant explained certain property items were forwarded to plaintiff in security control
and the remainder was kept in storage.          Defendant submitted a copy of plaintiff’s
property inventory compiled on July 4, 2009 when his property was packed.              The
inventory bears plaintiff’s signature acknowledging the document represents “a
complete and accurate inventory of all my personal property.” The property listed on
the inventory relevant to this claim includes two bars of soap and hygiene items.
Defendant submitted a copy of a property sheet listing the property distributed to plaintiff
while he was housed in security control. The listed items on this property sheet relevant
to this claim include hygiene items. When plaintiff regained possession of his property
on July 8, 2009 he signed the inventory acknowledging all listed items were returned to
him. Defendant submitted a copy of plaintiff’s property inventory compiled on October
19, 2009 when he was transferred to security control.           The property listed on this
October 19, 2009 inventory relevant to this claim includes photographs, letters and
papers, one bowl, soap, and hygiene items.          There is no record SOCF staff ever
received delivery of a personal t-shirt or a pair of blue shorts.
       {¶ 4} 4)     Plaintiff filed a response insisting defendant never packed his
photographs on July 4, 2009 and the photographs are now missing. Plaintiff did not
produce any evidence other than his own assertion to establish any of his property was
lost or stolen while under the control of SOCF personnel incident to his July 4, 2009
transfer to security control.
                                 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.
       {¶ 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; Mussivand v.
David (1989), 45 Ohio St. 3d 314, 318, 544 N.E. 2d 265.
       {¶ 13} 9) 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. This 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.
       {¶ 14} 10) Plaintiff has failed to prove, by a preponderance of the evidence, any
of his property was lost 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




JOSHUA ISAAC

      Plaintiff

      v.

DEPT. REHABILITATION AND CORRECTION

      Defendant

      Case No. 2010-04203-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:

Joshua Isaac, #A545-350         Gregory C. Trout, Chief Counsel
P.O. Box 45699                  Department of Rehabilitation
Lucasville, Ohio 45699          and Correction
                                770 West Broad Street
                                Columbus, Ohio 43222
RDK/laa
6/15
Filed 7/14/10
Sent to S.C. reporter 11/5/10
