[Cite as Forester v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-3443.]

                                      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




JOHN W. FORESTER

       Plaintiff

       v.

OHIO DEPT. OF REHAB. & CORR.

       Defendant

        Case No. 2010-10289-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                          FINDINGS OF FACT

        {¶ 1} 1)       Plaintiff, John W. Forester, an inmate incarcerated under the custody
of defendant, Department of Rehabilitation and Correction, at the London Correctional
Institution (LoCI), filed this action alleging his personal property was stolen as a
proximate cause of negligence on the part of LoCI staff in failing to provide adequate
protection. Plaintiff explained he secured his property in his foot and wall lockers on
January 11, 2010 in anticipation of being transferred from his housing unit.                     While
awaiting transfer, plaintiff’s personal property was packed and inventoried by LoCI
personnel with the assistance of an inmate porter. Plaintiff indicated he was in proximity
to his property while the items were being packed and could observe the pack-up taking
place. Plaintiff maintained his radio, headphones, tennis shoes, “and various other
miscellaneous items” were not among his packed property.                       Plaintiff presumed
“someone had stolen” his property.                  Plaintiff advised that he was subsequently
transferred (February 4, 2010) from the Correctional Medical Center to the Chillicothe
Correctional Institution where he confirmed “that said property items (were) missing
from his personal property.” Plaintiff asserted LoCI staff failed “to make reasonable
attempts to recover the property when it was reported stolen.” In his complaint, plaintiff
requested damages in the amount of $86.47, the estimated replacement cost of his
alleged missing property, which included a GPX radio, Koss headphones, Riddell tennis
shoes, a coffee mug, two towels, and six wash cloths. Additionally, plaintiff requested
$20.00 for postage and copying expenses1 as well as $25.00 for filing fee
reimbursement costs. Plaintiff did not pay and was not required to pay a filing fee to
prosecute this action. Plaintiff’s damage claim in this action is limited to $86.47.
       {¶ 2} 2)      Plaintiff submitted a copy of his “Inmate Property Record-Disposition
and Receipt” (inventory) dated May 10, 2009 compiled by LoCI staff incident to a
transfer. This inventory lists the following items relevant to this claim: one radio, one
set of headphones, one pair of gym shoes, and ten towels.                    No wash cloths and
mugs/glasses are listed. Plaintiff also submitted a copy of an additional inventory which
the trier of fact finds entirely illegible. Furthermore, plaintiff submitted a copy of another
inventory dated February 3, 2010 and compiled incident to a transfer from LoCI to the
Chillicothe Correctional Institution.        Property relevant to this claim listed on this
inventory includes: two personal towels, two personal wash cloths, and a pair of ear
buds. No radio, Koss headphones, or tennis shoes are listed on this inventory. Plaintiff
submitted documentation showing he purchased a set of Koss headphones on January
9, 2009 (purchase price $18.73), a pair of Riddell shoes on November 27, 2009
(purchase price $21.60), and a GPX radio on December 9, 2008 (purchase price
$24.81).
       {¶ 3} 3)      Defendant denied liability in this matter contending plaintiff failed to
offer sufficient evidence to establish his property items were lost or stolen as a
proximate cause of negligence on the part of LoCI personnel. Defendant noted plaintiff
did not complain about any missing property until February 28, 2010 when he filed an
Informal Complaint Resolution (ICR). Defendant maintained LoCI staff conducted a
search for plaintiff’s property after plaintiff advised that his property was in the
possession of another inmate (Inmate Diggins #558-399). Defendant asserted plaintiff’s
property was “watched” the entire time the items were transported on January 11, 2010.


       1
            Postage and copying costs are not compensable in a claim of this type. Carnail v. Dept. of
Rehab. & Corr., Ct. of Cl. No. 2007-06322-AD, 2008-Ohio-1207; Tyler v. Ohio Dept. of Rehab. & Corr.,
Ct. of Cl. No. 2007-07299-AD, 2008-Ohio-3418.
      {¶ 4} 4)     Plaintiff filed a response arguing his property was lost or stolen as a
result of defendant’s negligence not packing his property in a prompt fashion after the
property was secured in locked lockers.            Plaintiff advised his property “sat
unsupervised” from 11:45 a.m. to 1:30 p.m. on January 11, 2010.
                               CONCLUSIONS OF LAW
      {¶ 5} 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.
      {¶ 6} 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.
      {¶ 7} 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.
      {¶ 8} 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.
      {¶ 9} 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.
      {¶ 10} 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.
      {¶ 11} 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 his
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.
      {¶ 12} 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.
      {¶ 13} 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.
      {¶ 14} 10) The fact defendant supplied plaintiff with a locker box to secure
valuables constitutes prima facie evidence of defendant discharging its duty of
reasonable care. Watson v. Department of Rehabilitation and Correction (1987), 86-
02635-AD.
      {¶ 15} 11) 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.
      {¶ 16} 12) 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.
       {¶ 17} 13) 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 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 January 11, 2010.
       {¶ 18} 14) 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.
        {¶ 19} 15) 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.
        {¶ 20} 16) 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.
        {¶ 21} 17) However, 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,
some of plaintiff’s property items claimed were indistinguishable and, therefore, no duty
to search arose.
        {¶ 22} 18) Plaintiff has failed to prove, by a preponderance of the evidence, that
defendant was negligent in respect to making any attempts to recover stolen property.
See Williams v. Dept. of Rehab. & Corr., Ct. of Cl. No. 2005-11094-AD, 2006-Ohio-
7207.    Plaintiff has failed to prove defendant delayed conducting any search or
conducted an inadequate search after being notified of missing property. Caddy v. Ohio
Dept. of Rehab. & Corr., Ct. of Cl. 2009-08624-AD, 2010-Ohio-4216.
        {¶ 23} 19) Plaintiff has failed to prove, by a preponderance of the evidence, that
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; 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




JOHN W. FORESTER

        Plaintiff

        v.

OHIO DEPT. OF REHAB. & CORR.

        Defendant

         Case No. 2010-10289-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:

John W. Forester, #127-570                        Gregory C. Trout, Chief Counsel
P.O. Box 7010                                     Department of Rehabilitation
Chillicothe, Ohio 45601-5500                      and Correction
                                                  770 West Broad Street
                                                  Columbus, Ohio 43222
RDK/laa
3/15
Filed 3/31/11
Sent to S.C. reporter 6/30/11
