[Cite as Thayer v. Ohio State Penitentiary, 2009-Ohio-7169.]

                                       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




COREY THAYER

       Plaintiff

       v.

OHIO STATE PENITENTIARY

       Defendant

        Case No. 2009-06486-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)         On December 6, 2008, plaintiff, Corey Thayer, an inmate
incarcerated at defendant, Ohio State Penitentiary (OSP), was transferred to a
segregation unit. Plaintiff’s personal property was inventoried, packed, and delivered
into the custody of OSP staff incident to the transfer.
        {¶ 2} 2)         Plaintiff related he was released from segregation on December 23,
2008 and his personal property was returned. According to plaintiff, multiple clothing
items and two bath towels were not among the returned property. Plaintiff has asserted
the following property items were lost or stolen while under the control of OSP
personnel: three pairs of shorts, one pair of sweat pants, one sweat shirt, six t-shirts,
one six pack of socks, three pairs of boxer shorts, and two bath towels. Plaintiff filed
this complaint seeking to recover damages in the amount of $111.69, the stated
replacement cost of his alleged missing property. The $25.00 filing fee was paid and
plaintiff requested reimbursement of that cost along with his damage claim.
        {¶ 3} 3)         Plaintiff submitted a copy of his property inventory compiled on
December 6, 2008 when he was transferred to segregation. All the claimed missing
property is listed on this inventory with the exception of one pair of boxer shorts.
Plaintiff submitted invoices showing he purchased three pairs of shorts, a pair of sweat
pants, a sweat shirt, six undershirts, a six pack of socks, three pairs of boxer shorts, and
two towels in February 2004 while he was incarcerated at Trumbull Correctional
Institution.
       {¶ 4} 4)      Defendant denied liability in this matter contending most of the
items plaintiff claimed as missing were state issue clothing and not personal property.
Defendant further contended plaintiff did not offer proof he actually owned the property
claimed. Defendant did not address the issue that packed property was lost or stolen
while under the control of OSP staff.
       {¶ 5} 5)      Plaintiff filed a response insisting his personal property was lost
while under the control of OSP staff. Plaintiff denied the missing clothing items and
towels claimed were state issue.
                                 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)      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.
       {¶ 10} 5)     Negligence on the part of defendant has been shown in respect to
the loss of all property claimed. Baisden v. Southern Ohio Correctional Facility (1977),
76-0617-AD.
       {¶ 11} 6)     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 fact he owned all the items claimed.
       {¶ 12} 7)    Negligence on the part of defendant has been shown in respect to
the issue protecting plaintiff’s property after he was transferred. Billups v. Department
of Rehabilitation and Correction (2001), 2000-10634-AD, jud.
       {¶ 13} 8)    The court finds defendant liable to plaintiff in the amount of
$111.69, plus the $25.00 filing fee. 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




COREY THAYER

      Plaintiff

      v.

OHIO STATE PENITENTIARY

      Defendant

       Case No. 2009-06486-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 $136.69, which includes the filing fee. Court costs are
assessed against defendant.




                                           DANIEL R. BORCHERT
                                           Deputy Clerk

Entry cc:

Corey Thayer, #420-105                     Gregory C. Trout, Chief Counsel
878 Coitsville-Hubbard Road                Department of Rehabilitation
Youngstown, Ohio 44505                     and Correction
                                           770 West Broad Street
                                           Columbus, Ohio 43222
RDK/laa
10/22
Filed 11/20/09
Sent to S.C. reporter 3/12/10
