[Cite as Hill v. Warren Corr. Inst., 2011-Ohio-5120.]



                                       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




ANDRE HILL

        Plaintiff

        v.

WARREN CORRECTION INSTITUTION

        Defendant

        Case No. 2011-03383-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                           FINDINGS OF FACT
        {¶1}     Plaintiff, Andre Hill, an inmate formerly incarcerated at defendant, Warren
Correctional Institution (WCI), filed this action alleging that several items of his personal
property were lost or stolen in May 2009 as a proximate result of negligence on the part
of WCI staff. Plaintiff related that he was subject to a random cell search by Corrections
Officer (CO) Mengle who allegedly confiscated plaintiff’s radio, television set, and other
items, because plaintiff had been placed under sanctions and therefore was not
permitted to possess those items. According to plaintiff, the items were placed in the
“officer’s corridor vault” and they were then to be sent to the main institutional vault.
Plaintiff stated he received his television set approximately three days later and that
once he was off all sanctions, he sought the return of the remainder of his confiscated
property. Plaintiff asserted that the items were never located by any WCI staff despite
numerous requests made by plaintiff over several months and that he has been unable
to secure the return of his property.
        {¶2}     Plaintiff listed the following items as missing: a super radio, digital
antenna, fan, and cassette player. Plaintiff requested damage recovery in the amount of
$225.00, the stated total value of the alleged missing property. Payment of the filing fee
was waived. Along with the complaint, plaintiff submitted a copy of a notice of grievance
which was denied on September 9, 2009. The denial form stated, in part, “you stated
that your CD player, TV, Fan, Super 3 Radio and antenna were taken by C/O Mengle,
because you were on sanctions and should not have had these items in your cell. You
also stated that these items were than put in the 2B vault corridor and the only item
returned to you was your TV. You further stated that Major Sears acknowledged fault
for your property not being returned to you. This Inspector interviewed C/O Mengle and
she vehemently denied taking any of your property from your cell. She also stated that
if she did take any property from your cell that a conduct report would have also been
written. Major Sears stated that he in no way admitted fault for your property missing.
Major Sears did state that he did offer a TV to you as a loaner TV. He further stated
that you told him you already had a TV. No sufficient evidence exists to support your
claim.”
          {¶3}   Defendant denied liability in this matter contending that plaintiff failed to
offer any evidence to establish that any of his property was lost or stolen as a result of
any breach of a duty of care owed on the part of WCI personnel in regard to inmate
property protection.      Defendant specifically denied ever exercising control over any
items plaintiff claimed. Defendant asserted that an investigation was completed and
that there was no evidence that WCI staff removed plaintiff’s property from his cell.
Defendant submitted an unsigned copy of a report purportedly prepared by the WCI
Institutional Inspector, Mr. McIntosh. The report concluded that plaintiff “has provided
insufficient evidence to support his claim of items allegedly being taken from his cell and
lost by W.C.I. Staff members. This Inspector interviewed all parties allegedly involved
and reviewed all relevant information and found in no way that W.C.I. Staff Members
were negligent in any way.”
          {¶4}   Plaintiff filed a response reiterating the allegations of his complaint and
asserting that CO Mengle was also negligent for failing to follow the administrative
regulations and defendant’s policies after she allegedly confiscated his property. In
addition, plaintiff submitted the affidavit of Inmate Calvin Hill who stated that in May
2009, he personally witnessed C/O Mengle take plaintiff’s property items from plaintiff’s
cell and place them in the officers’ vault.
                                   CONCLUSIONS OF LAW
       {¶5}    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} “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} 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} 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} 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}      Plaintiff must produce evidence which affords a reasonable basis for
the conclusion that 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}      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 the
assertions of plaintiff or of Inmate Hill particularly persuasive regarding the alleged
confiscated property.
       {¶12}     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, 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
plaintiff alleges that WCI staff failed to comply with internal prison regulations and the
Ohio Administrative Code, he fails to state a claim for relief.
       {¶13}     Plaintiff cannot recover for property loss when he fails to produce
sufficient evidence to establish that 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. Plaintiff failed to prove that defendant actually
exercised control over his alleged missing property incident to the May 2009 shakedown
search.
       {¶14}     Plaintiff’s failure to prove delivery of the above listed 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.
       {¶15}     Plaintiff has failed to show an causal connection between the loss of
his property listed and any breach of a duty owed by defendant in regard to protecting
inmate property. Druckenmiller v. Mansfield Correctional Inst. (1998), 97-11819-AD;
Melson v. Ohio Department of Rehabilitation and Correction (2003), Ct. of Cl. No. 2003-
04236-AD, 2003-Ohio-3615.
       {¶16}     Plaintiff has failed to prove, by a preponderance of the evidence, that
any of his property was stolen or 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




ANDRE HILL

        Plaintiff

        v.

WARREN CORRECTION INSTITUTION

        Defendant

         Case No. 2011-03383-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:

Andre Hill, #440-970                              Gregory C. Trout, Chief Counsel
P.O. Box 788                                      Department of Rehabilitation
1150 North Main Street                            and Correction
Mansfield, Ohio 44901                             770 West Broad Street
                                                  Columbus, Ohio 43222
SJM/laa
6/8
Filed 6/29/11
Sent to S.C. reporter 10/4/11
