[Cite as Collins v. Marion Corr. Inst., 2011-Ohio-3774.]



                                       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




JAMES COLLINS

        Plaintiff

        v.

MARION CORRECTION INSTITUTION

        Defendant


        Case No. 2010-11544-AD


Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


                                          FINDINGS OF FACT
        {¶ 1} Plaintiff, James Collins, an inmate incarcerated at defendant’s Marion
Correctional Institution (“MCI”), asserted one CD, one blanket, and several clothing and
food items were confiscated from him by MCI employee, Officer Mullins, during the
course of a routine search on May 20, 2010. Plaintiff opined that the search of his cell
was conducted in an overly aggressive and hostile manner. Plaintiff submitted a copy
of a “Conduct Report” issued to him on May 20, 2010, for possession of contraband. It
is noted in the “Conduct Report” that plaintiff could not produce a commissary receipt for
the food items. Plaintiff related the items were never returned to him despite the fact he
had receipts verifying proof of ownership.
        {¶ 2} Plaintiff contended MCI staff damaged the blanket during the search and
confiscated and subsequently destroyed the remainder of his listed property without
proper authority. Consequently, plaintiff filed this complaint seeking to recover $188.32,
the stated replacement cost of his CD, blanket, clothing, and food items. Payment of
the filing fee was waived.
       {¶ 3} Defendant acknowledged that the listed items (with the exception of the
blanket) were seized from plaintiff’s possession and declared contraband. Defendant
explained plaintiff was not permitted to possess one CD as it was recordable.             In
addition, defendant contended the clothing items were either altered or exceeded the
limit allowed. Finally, defendant asserted plaintiff failed to provide receipts for the food
items or the music CDs. According to defendant, plaintiff was found guilty of having
contraband with the exception of 8 music CDs and these were returned to him.
Defendant argued plaintiff has no right to pursue a claim for confiscated property that he
cannot prove he owned.
       {¶ 4} Plaintiff filed a response suggesting that he has been targeted by
defendant’s employees for some unspecified reason and that there is a discernible
pattern to this type of behavior. In addition, plaintiff asserted he was never informed he
needed to retain each and every receipt and that he should have been allowed to mail
out “minor contraband.”      Plaintiff implied defendant had intentionally removed his
receipts from his file. Finally, plaintiff asserted he rightfully owned the seized property
and argued he should have been allowed the option to mail out “minor contraband.”
                                    CONCLUSIONS OF LAW
       {¶ 5} 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, 479, 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 418. Additionally, this court has 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 that plaintiff alleges that DRC somehow
violated internal prison regulations and the Ohio Administrative Code, he fails to state a
claim for relief.
       {¶ 6} The Supreme Court of Ohio has established that an employer is liable for
the tortious conduct of its employee only if the conduct is committed within the scope of
employment and if the tort is intentional, the conduct giving rise to the tort must facilitate
or promote the business of which the employee was engaged. Byrd v. Faber (1991), 57
Ohio St. 3d 56, 565 N.E. 2d 584, citing Little Miami RR. Co. v. Wetmore (1869), 19 Ohio
St. 110, and Taylor v. Doctors Hosp. (1985), 21 Ohio App. 3d 154, 21 OBR 165, 486
N.E. 2d 1249.
       {¶ 7} Further, an intentional and willful tort committed by an employee for her own
purposes constitutes a departure from the employment, so that the employer is not
responsible. Szydlowski v. Ohio Dept. of Rehab. & Corr. (1992), 79 Ohio App. 3d 303,
607 N.E. 2d 103, citing Vrabel v. Acri (1952), 156 Ohio St. 467, 46 O.O. 387, 103 N.E.
2d 564. The facts of this case, if taken as true, would constitute an intentional tort
committed by defendant’s employee performed for her own personal purposes. Thus,
following the rationale of Szydlowski, supra, plaintiff would not have a cause of action
against defendant for intentional damage done to his property.
       {¶ 8} To the extent that plaintiff alleges claims based upon retaliation, action
against the state under Section 1983, Title 42, U.S. Code may not be brought in the
Court of Claims because the state is not a “person” within the meaning of Section 1983.
See, e.g., Jett v. Dallas Indep. School Dist. (1989), 491 U.S. 701, 109 S. Ct. 2702, 105
L. Ed. 2d 598; Burkey v. Southern Ohio Correctional Facility (1988), 38 Ohio App. 3d
170, 528 N.E. 2d 607; White v. Chillicothe Correctional Institution (Dec. 29, 1992),
Franklin App. No. 92-AP-1229. Indeed, claims of retaliation are to be treated as an
action for alleged violations of constitutional rights under Section 1983, Title 42, U.S.
Code. Thus, this court is without jurisdiction to hear those claims.
       {¶ 9} This court has previously held that property in an inmate’s possession
which cannot be validated by proper indicia of ownership is contraband and
consequently, no recovery is permitted when such property is confiscated. Wheaton v.
Department of Rehabilitation and Correction (1988), 88-04899-AD.
       {¶ 10} 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.
       {¶ 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.
       {¶ 12} 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.
       {¶ 13} 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.
       {¶ 14} 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.
       {¶ 15} 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.
       {¶ 16} 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 with regard to the damage to his blanket particularly persuasive.
                                  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




JAMES COLLINS

          Plaintiff

          v.

MARION CORRECTION INSTITUTION

          Defendant

          Case No. 2010-11544-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:

James Collins, #530-138                            Gregory C. Trout, Chief Counsel
940 Marion-Williamsport Road                       Department of Rehabilitation
Marion, Ohio 43301                                 and Correction
                                                   770 West Broad Street
                                                   Columbus, Ohio 43222
SJM/laa
3/24
Filed 4/13/11
Sent to S.C. reporter 7/29/11
