[Cite as Frazier v. Lebanon Corr. Inst., 2010-Ohio-6644.]

                                       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




RAYMOND FRAZIER

        Plaintiff

        v.

LEBANON CORR. INST.

        Defendant

        Case No. 2010-06371-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)        Plaintiff, Raymond Frazier, an inmate incarcerated at defendant,
Lebanon Correctional Institution (LeCI), alleged that several items of personal property
were stolen from his cell housing unit on October 19, 2009, at a time when both he and
his cellmate were away from the unit. Plaintiff further alleged that the door to his cell
was unlocked by on-duty LeCI personnel; thereby facilitating the property theft claimed.
Plaintiff noted that defendant’s staff failed to conduct any investigation after he reported
the theft of his property, which included a Super III radio, a hot pot, a Kool Operater Jr.
fan, four bath towels, two bowls, and an adapter. Attached to his complaint, plaintiff
submitted a copy of an “Inmate Property Theft/Loss Report” (theft report) compiled on
October 20, 2009 when the theft was reported. According to information contained in
the theft report, no action to recover any property was taken by LeCI staff. None of
plaintiff’s property was recovered. Plaintiff contended that his property was stolen and
unrecovered as a proximate cause of negligent acts and omissions on the part of LeCI
personnel.          Plaintiff filed this complaint seeking to recover $127.43, the stated
replacement cost of his property. Plaintiff advised that the property claimed was four
years old at the time of the theft. Also submitted with the complaint was an “Informal
Complaint Resolution” plaintiff filed on October 19, 2009 regarding the theft of his
property from his cell. In the “Informal Complaint Resolution” plaintiff wrote, “[m]y cellie
(cellmate) claimed to have been threatened allowed this robbery to happen out of fear.”
Payment of the filing fee was waived.
        {¶ 2} 2)   Defendant denied liability in this matter asserting that plaintiff failed to
offer “specific proof regarding his allegations that the corrections officers unlocked his
cell door;” thereby giving an unidentified thief access to the property stored inside the
cell.   Defendant further asserted that the on-duty LeCI officers Dickensheets and
Cooper “both denied opening Plaintiff’s cell door without verifying the I.D. of the entering
inmate.” The claim file is devoid of any statement from either Officer Dickensheets or
Officer Cooper. Defendant suggested that plaintiff’s cellmate or other inmates caused
plaintiff’s property to be stolen. Furthermore, defendant argued that plaintiff failed to
offer sufficient proof to establish that he actually owned the property claimed with the
exception of one hot pot.
        {¶ 3} 3)   Plaintiff filed a response insisting that he rightfully owned all property
claimed.   Plaintiff again asserted that a review by defendant of the “security video
footage” taken on October 19, 2009 would ascertain the identity of the person who stole
his property and would conclusively prove whether or not his cell door was unlocked by
LeCI personnel.
                                CONCLUSIONS OF LAW
        {¶ 4} 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.
        {¶ 5} 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.
      {¶ 6} 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.
      {¶ 7} 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.
      {¶ 8} 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.
      {¶ 9} 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.
      {¶ 10} 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.
      {¶ 11} 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 an 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 credible that he possessed and owned all property claimed at the time of the
incident, October 19, 2009.
      {¶ 12} 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.
      {¶ 13} 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.
         {¶ 14} 11) Defendant, when it retains control over whether an inmate’s cell door
is to be open or closed, owes a duty of reasonable care to inmates who are exclusively
forced to store their possessions in the cell while they are absent from the cell. Smith v.
Rehabilitation and Correction (1978), 77-0440-AD.
         {¶ 15} 12) However, in the instant claim, plaintiff has failed to prove defendant
negligently or intentionally unlocked his cell door, and therefore, no liability shall attach
to defendant as a result of any theft based on this contention. Carrithers v. Southern
Ohio Correctional Facility (2002), 2001-09079-AD.
         {¶ 16} 13) 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.
         {¶ 17} 14) 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. The bulk of plaintiff’s
property consisted of indistinguishable items.
         {¶ 18} 15) Plaintiff has proven, by a preponderance of the evidence, that
defendant was negligent in respect to making any attempts to recover distinguishable
stolen property. See Williams v. Dept. of Rehab. & Corr., Ct. of Cl. No. 2005-11094-AD,
2006-Ohio-7207. The distinguishable property items consisted of a fan and a Super III
radio.
         {¶ 19} 16) Negligence on the part of defendant has been shown in respect to a
failure by LeCI staff to make any reasonable attempts to recover distinguishable
property. Mullett.
         {¶ 20} 17) Plaintiff has failed to prove, by a preponderance of the evidence, that
any indistinguishable property was stolen 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.
         {¶ 21} 18) 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.
      {¶ 22} 19) In a situation where a damage assessment for personal property
destruction or loss based on market value is essentially indeterminable, a damage
determination may be based on the standard value of the property to the owner. This
determination considers such factors as value to the owner, original cost, replacement
cost, salvage value, and fair market value at the time of the loss. Cooper v. Feeney
(1986), 34 Ohio App. 3d 282, 518, N.E. 2d 46.
      {¶ 23} 20) As the 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.
      {¶ 24} 21) 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.
      {¶ 25} 22) Plaintiff has suffered damages in the amount of $35.00.




                              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




RAYMOND FRAZIER

      Plaintiff

      v.
LEBANON CORR. INST.

        Defendant

         Case No. 2010-06371-AD

Clerk Miles C. Durfey

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 $35.00. Court costs are assessed against defendant.




                                                  MILES C. DURFEY
                                                  Deputy Clerk

Entry cc:

Raymond Frazier, #508-775                         Gregory C. Trout, Chief Counsel
3791 State Route 63                               Department of Rehabilitation
Lebanon, Ohio 45036-0056                          and Correction
                                                  770 West Broad Street
                                                  Columbus, Ohio 43222

RDK/laa
9/21
Filed 10/28/10
Sent to S.C. reporter 2/2/11
