[Cite as Harris v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-5451.]

                                      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




RONALD E. HARRIS, II

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS

       Defendant

        Case No. 2009-06982-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)       Plaintiff, Ronald E. Harris, II, an inmate incarcerated at defendant’s
Chillicothe Correctional Institution (CCI), filed this action alleging three separate causes
of action involving property loss and damage.
        {¶ 2} 2)       Initially, plaintiff claimed he did not receive his mail from the CCI
mailroom. Plaintiff did not place a value on the alleged undelivered mail.
        {¶ 3} 3)       Plaintiff claimed that at sometime in December 2008 his locked
locker box was broken into and his gym shorts were stolen. Plaintiff asserted defendant
should bear liability for the loss of his gym shorts and the damage to his lock. Plaintiff
requested $26.00, the stated replacement cost of the gym shorts and lock.
        {¶ 4} 4)       In another matter, plaintiff contended his sweat shirt was lost on or
about February 22, 2009, while under the control of CCI staff. Plaintiff explained he was
transferred to a segregation unit on that date and his personal property was packed and
delivered into the custody of CCI personnel for storage. Plaintiff contended his sweat
shirt was removed from storage and presumedly lost. Plaintiff requested damages in
the amount of $20.00 for the loss of his sweat shirt.
       {¶ 5} 5)      Plaintiff also requested an additional $50.00 for legal fees and
emotional distress. Legal fees are not compensable in a claim of this type. Damages
for emotional distress are not compensable in a claim involving property loss. These
claims are denied and shall not be further addressed. Plaintiff’s damage claim is limited
to $46.00. Payment of the filing fee was waived.
       {¶ 6} 6)      Plaintiff submitted documentation showing he purchased two sweat
shirts and two pairs of gym shorts through mail order on November 18, 2008. The
purchase price of a sweat shirt was $14.05. The purchase price of a pair of gym shorts
was $8.55. Plaintiff submitted a copy of his “Inmate Property Record” (inventory) dated
February 22, 2009. Two pairs of gym shorts are listed on the inventory. No sweat
shirts are listed.
       {¶ 7} 7)      Defendant denied liability for all claims forwarded by plaintiff.
Defendant asserted plaintiff has failed to produce evidence to establish his property was
lost, stolen, or not delivered to him as a proximate cause of any negligent act or
omission on the part of CCI personnel.         Defendant denied exercising control over
plaintiff’s sweat shirt incident to packing his property on February 22, 2009. Defendant
asserted “proper procedures were being followed” in regard to distributing plaintiff’s
mail. Defendant denied the mail in question was “delayed or mishandled.” Defendant
acknowledged plaintiff reported in December 2008 that his shorts were stolen.
Defendant pointed out plaintiff claimed the gym shorts were sent to the institution
laundry in a laundry bag and were not among the returned laundered items. Defendant
noted a fruitless search was conducted for the gym shorts. Defendant submitted a copy
of an “Inmate Property Theft/Loss Report” (Theft report) filed incident to plaintiff
reporting the theft of his gym shorts on December 5, 2008. According to the Theft
report record, plaintiff’s gym shorts were “tied up in (a) laundry bag” and were not
among the items returned in the tied bag. Defendant related “[t]here is no indication in
the theft report that the bag had been tampered with or opened.” Defendant denied
plaintiff ever reported his locker box had been broken into and his gym shorts were
stolen from the locker box.
       {¶ 8} 8)      Plaintiff filed a response insisting his gym shorts were stolen from his
locker box in December 2008. Plaintiff asserted CCI staff failed to conduct a proper
search for his gym shorts after being informed of the theft. Plaintiff again contended his
sweat shirt was lost while under defendant’s control.          Plaintiff claimed defendant
interfered with his mail by removing certain documents.
                               CONCLUSIONS OF LAW
      {¶ 9} 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.
      {¶ 10} 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.
      {¶ 11} 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.
      {¶ 12} 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.
      {¶ 13} 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.
      {¶ 14} 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.
      {¶ 15} 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.
      {¶ 16} 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.
       {¶ 17} 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 (1986), 84-02425. Plaintiff
must show defendant breached a duty of ordinary or reasonable care. Williams.
       {¶ 18} 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.
       {¶ 19} 11) 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.
       {¶ 20} 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.
       {¶ 21} 13) 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, the
claimed stolen property was indistinguishable and, therefore, no duty to search arose.
Wallace v. Grafton Corr. Inst., Ct. of Cl. No. 2009-01743, 2009-Ohio-5741.
       {¶ 22} 14) Plaintiff has failed to prove, by a preponderance of the evidence, that
defendant was negligent in respect to making a reasonable attempt to recover
distinguishable or indistinguishable stolen property. See Williams v. Dept. of Rehab. &
Corr., Ct. of Cl. No. 2005-11094-AD, 2006-Ohio-7207.
       {¶ 23} 15) Plaintiff has failed to prove, by a preponderance of the evidence, that
any of his property was stolen, undelivered, 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




RONALD E. HARRIS, II

      Plaintiff

      v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS

      Defendant

          Case No. 2009-06982-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:

Ronald E. Harris, II, #537-076                     Gregory C. Trout, Chief Counsel
15802 State Route 104 N.                           Department of Rehabilitation
P.O. Box 5500                                      and Correction
Chillicothe, Ohio 45601-5500                       770 West Broad Street
                                                   Columbus, Ohio 43222
RDK/laa
6/9
Filed 7/20/10
Sent to S.C. reporter 11/5/10
