[Cite as Yeager v. Richland Correctional Inst., 2010-Ohio-6670.]

                                       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 M. YEAGER

       Plaintiff

       v.

RICHLAND CORRECTIONAL INSTITUTION

       Defendant

        Case No. 2010-05099-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


                                          FINDINGS OF FACT
        {¶ 1} 1)       Plaintiff, Andre Yeager, a former inmate incarcerated at defendant,
Richland Correctional Institution (RiCI), filed this action alleging his personal property
was confiscated by RiCI staff on November 25, 2008 and subsequently destroyed as
contraband without obtaining proper authorization to carry out the destruction. Plaintiff
claimed defendant’s personnel violated internal regulations when charging him with
possession of contraband and disposing of the declared contraband items. Plaintiff
seeks damages in the amount of $310.32, the stated replacement value of the
confiscated property which included clothing, books, personal hygiene items, food
products, and other sundry items. The filing fee was paid.
        {¶ 2} 2)       Attached with his complaint, plaintiff submitted a copy of a “Conduct
Report” he was issued on November 25, 2008 incident to RiCI staff confiscating his
property.      According to information in the “Conduct Report,” the property was
confiscated due to the fact plaintiff possessed excessive items which did not comply
with defendant’s internal restrictions regarding volume limitations (2.4 cubic feet). Also
submitted with his complaint was a “Contraband Control Slip” plaintiff was issued when
his property was confiscated on November 25, 2008. Confiscated property items listed
on this “Contraband Control Slip” include the following: five boxer shorts, one towel, two
socks, one set of headphones, one bowl, one rice, two sweat pants, two wash cloths,
four t-shirts, and two books.
       {¶ 3} 3)    Plaintiff submitted a copy of a “Disposition of Grievance” dated
January 16, 2009, in which the RiCI Inspector denied plaintiff’s grievance regarding the
confiscation and disposition of his property. According to information contained in this
“Disposition of Grievance,” plaintiff was afforded the option to either authorize the
mailing of the confiscated property to an outside address or have the confiscated
property destroyed.     Furthermore, it was noted that plaintiff made no decision
concerning the disposition of the confiscated items. Plaintiff also submitted a copy of
his grievance appeal dated February 9, 2009 in which defendant’s Chief Inspector found
plaintiff was given the opportunity to either mail out the confiscated items or have the
items destroyed when the charges in his November 25, 2008 “Conduct Report” were
heard. The Chief Inspector found plaintiff “refused to give an answer as to what you
wanted to do with it (confiscated property).” Plaintiff specifically denied charges in the
“Conduct Report” he was issued were ever heard by defendant’s “Rules Infraction
Board (RIB).” Plaintiff asserted the confiscated property was subsequently destroyed
by RiCI staff without obtaining proper authorization.
       {¶ 4} 4)    Defendant acknowledged five under shorts, one towel, four t-shirts, 1
set of headphones, one bowl, one rice, two sweat pants, two wash cloths, two books,
and two socks were confiscated from plaintiff’s possession on or about November 25,
2008 by RiCI staff. Defendant also acknowledged the confiscated property items were
subsequently destroyed three months later. Defendant asserted plaintiff was afforded
an opportunity to authorize the mailing of the confiscated property, but refused to make
any choice in regard to the disposition of the confiscated property. Defendant argued
plaintiff cannot maintain an action for the value of the destroyed property since the
property was declared contraband and therefore plaintiff had no right to possess
contraband.    Defendant pointed out plaintiff claimed RiCI staff confiscated other
property not listed on the “Contraband Control Slip.” This property claimed consisted
mostly of food products and personal hygiene items. Defendant stated, “Plaintiff has
failed to provide verification of legitimate ownership to the property claimed to be
confiscated.” In regard to the known confiscated property, defendant contended RiCI
staff acted properly and in accordance with internal policy when hearing the charges
against plaintiff contained in the November 25, 2008 “Conduct Report.”           Defendant
explained the “Conduct Report” was heard by RiCI employee, Sergeant Burkhart after
being issued by RiCI employee, Correctional Officer Rose. Defendant further explained
that although the “Conduct Report” was referred to RIB for disposition, it was not
processed through RIB. Defendant pointed out the “Conduct Report,” after being heard
by Sergeant Burkhart, was affirmed by RIB with no participation by plaintiff. Defendant
offered that plaintiff refused to participate in the initial hearing of the charges before
Sergeant Burkhart.       Defendant asserted Sergeant Burkhart acted appropriately in
conducting proceedings on the “Conduct Report” ex parte since plaintiff refused to
participate.     Defendant did not provide any documentation produced by Sergeant
Burkhart in regard to any hearing officer report.        Defendant did not produce any
documents showing plaintiff was afforded an opportunity to mail out the confiscated
property. Defendant did not produce a statement from Burkhart.
       {¶ 5} 5)      Plaintiff filed a response insisting he was not given an opportunity to
participate in the hearing of the “Conduct Report” by sergeant Burkhart. Plaintiff again
asserted defendant failed to follow internal regulations when hearing the “Conduct
Report.”       Plaintiff maintained Sergeant Burkhart under defendant’s administrative
regulations was prohibited from providing any disposition in reference to the charges in
the “Conduct Report.” Furthermore, plaintiff argued defendant failed to follow proper
procedure when destroying the confiscated property. Plaintiff claimed he was never
given an opportunity to mail the confiscated property and also claimed the confiscated
items were destroyed three days after the confiscation occurred.           Plaintiff advised
defendant failed to follow internal regulations when destroying the confiscated property
by not obtaining a forfeiture order prior to carrying out the destruction of the declared
contraband. Plaintiff contended that since defendant did not have proper authority to
destroy the confiscated items, liability has consequently, been established. Plaintiff
produced evidence to establish defendant confiscated five under shorts, one towels,
four t-shirts, one set of headphones, one bowl, one rice, two socks, two sweat pants,
two wash cloths, and two books from his possession on November 25, 2008. Plaintiff
did not produce any evidence other than his own assertion to prove any additional
property was confiscated by defendant on November 25, 2008.
                                 CONCLUSIONS OF LAW
       {¶ 6} 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.
       {¶ 7} 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.
       {¶ 8} 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.
       {¶ 9} 4)      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 419. Additionally, this court 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 RiCI staff failed to
comply with internal prison regulations and the Ohio Administrative Code, he fails to
state a claim for relief.
       {¶ 10} 5)     Plaintiff’s failure to prove delivery of 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.        Plaintiff has failed to prove defendant exercised
control over any property not listed on the “Contraband Control Slip” (dated November
25, 2008).
       {¶ 11} 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.
       {¶ 12} 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.
       {¶ 13} 8)   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 finds plaintiff’s
assertions persuasive regarding the failure of defendant to provide him an opportunity to
mail out the known confiscated property. The court does not find defendant’s assertions
persuasive in regard to the contention plaintiff was given an opportunity to mail out the
items contained on the “Contraband Control Slip.”
       {¶ 14} 9)   It has been previously held an inmate plaintiff may recover the value
of confiscated contraband property destroyed by agents of defendant when those
agents acted without authority or right to carry out the property destruction. Berg v.
Belmont Correctional Institution (1998), 97-09261-AD; Wooden v. Ohio Dept. of Rehab.
& Corr., Ct. of Cl. No. 2004-01958-AD, 2004-Ohio-4820; Hemsley v. N. Cent.
Correctional Inst., Ct. of Cl. No. 2005-03946-AD, 2005-Ohio-4613; Mayfield v. Richland
Correctional Inst., Ct. of Cl. No. 2005-07976-AD, 2006-Ohio-358. In the instant claim,
plaintiff has proven his confiscated property (listed on the November 25, 2008
“Contraband Control Slip”) was destroyed by RiCI staff without authorization and
consequently, defendant is liable for the destroyed property.
       {¶ 15} 10) The standard measure of damages for personal property loss is
market value. McDonald v. Ohio State Univ. Veterinary Hosp. (1994), 67 Ohio Misc. 2d
40, 644 N.E. 2d 750.
       {¶ 16} 11) As trier of fact, this court has the power to award reasonable
damages based on evidence presented. Sims v. Southern Ohio Correctional Facility
(1988), 61 Ohio Misc. 2d 239, 577 N.E. 2d 160.
       {¶ 17} 12) Damage assessment is a matter within the function of the trier of fact.
Litchfield v. Morris (1985), 25 Ohio App. 3d 42, 25 OBR 115, 495 N.E. 2d 462.
Reasonable certainty as to the amount of damages is required, which is that degree of
certainty of which the nature of the case admits. Bemmes v. Pub. Emp. Retirement
Sys. Of Ohio (1995), 102 Ohio App. 3d 782, 658 N.E. 2d 31.
      {¶ 18} 13) Plaintiff has suffered damages in the amount of $125.00.
      {¶ 19} 14) The $25.00 filing fee may be reimbursed as compensable costs
pursuant to R.C. 2335.19.     See Bailey v. Ohio Department of Rehabilitation and
Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.


                              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 M. YEAGER

      Plaintiff

      v.

RICHLAND CORRECTIONAL INSTITUTION

      Defendant

      Case No. 2010-05099-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 plaintiff in the amount of $150.00, which includes the filing fee. Court costs are
assessed against defendant.
                                DANIEL R. BORCHERT
                                Deputy Clerk

Entry cc:

Andre M. Yeager                 Gregory C. Trout, Chief Counsel
1334 Elwood                     Department of Rehabilitation
East Cleveland, Ohio 44112      and Correction
                                770 West Broad Street
                                Columbus, Ohio 43222
RDK/laa
11/3
Filed 11/23/10
Sent to S.C. reporter 2/18/11
