[Cite as Spencer v. Trumbull Correctional, 2011-Ohio-1110.]

                                      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




CLEVELAND SPENCER

       Plaintiff

       v.

TRUMBULL CORRECTIONAL

       Defendant

        Case No. 2010-08098-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


                                         FINDINGS OF FACT
        {¶ 1} 1)       Plaintiff, Cleveland Spencer, a former inmate at defendant, Trumbull
Correctional Institution (TCI), filed this action alleging several items of his personal
property were lost on or after June 21, 2009 as a proximate cause of negligence on the
part of TCI staff. Plaintiff related he was transferred from the TCI general population to
a segregation unit on June 21, 2009 for an institutional rule violation. Plaintiff’s personal
property was inventoried, packed, and delivered into the custody of TCI personnel
incident to this transfer. Plaintiff advised he was subsequently permitted to examine his
property stored        in the TCI property vault and discovered multiple items he had
possessed when arriving at TCI were missing.                  Plaintiff claimed his television set,
radio/CD player, headphones, one sweat shirt, two pairs of sweat pants, two pairs of
gym shoes, ten CDs, two pairs of gym shorts, a fan, and one adapter were among the
property items he discovered had not been packed and stored. According to plaintiff,
all the above mentioned items were stored in his cell at the time he was transferred to
segregation. In his complaint, plaintiff requested damage recovery in the amount of
$770.86, the stated total value of the alleged missing property. Payment of the filing fee
was waived.
          {¶ 2} 2)   Plaintiff submitted documentation showing that on or about October
18, 2006, he purchased a television set for $109.97, a radio/CD player for $47.97, a set
of headphones for $14.69, a pair of sweat pants for $15.97, and a sweat shirt for
$14.97. With his complaint, plaintiff attached an “Inmate Property Record - Disposition
and Receipt (inventory) dated June 17, 2009 listing all property plaintiff possessed at
that time. This inventory compiled incident to plaintiff’s transfer from the Southern Ohio
Correctional Facility (SOCF) to TCI lists the following items relevant to this claim: one
television set, one radio/CD player, one set of headphones, ten CDs, one pair of gym
shoes, one pair of sports shoes, two pairs of sweat pants, one sweat shirt, one adapter,
one fan, and two pairs of gym shorts. All property claimed as missing by plaintiff is
listed on the June 17, 2009 inventory compiled at TCI. Plaintiff also submitted a copy of
his June 21, 2009 property inventory compiled incident to his transfer to a segregation
unit at TCI. This inventory lists a television set, radio/CD player, and headphones. The
inventory does not list any shoes, gym shorts, sweat shirt, sweat pants, CDs, adapter,
or fan.
          {¶ 3} 3)   Defendant submitted a copy of an “Inmate property Theft/Loss
Report (theft report) dated July 8, 2009 and compiled after plaintiff reported the theft of
his property, which included a sweat shirt, sweat pants, gym shorts, ten CDs, and two
pairs of shoes. According to information in the theft report, no action was taken by TCI
staff to attempt to recover any items plaintiff claimed were stolen. In his complaint,
plaintiff advised he “made another complaint about more property being missing within
the time I was transfer(red) to the Trumbull County Jail.” It is unclear to the trier of fact
the nature and extent of the property loss claimed by plaintiff incident to his transfer
from TCI to the Trumbull County Jail.
          {¶ 4} 4)   Defendant denied liability in this matter contending plaintiff failed to
offer any evidence to establish any of his property was lost or stolen as a result of any
breach of any duty of care owed on the part of TCI personnel in regard to inmate
property protection. Defendant specifically denied ever exercising control over many
items plaintiff claimed. Defendant asserted plaintiff failed to prove any of his property
was lost or stolen as a proximate cause of negligence on the part of TCI staff.
          {¶ 5} 5)   Plaintiff filed a response noting defendant violated internal policy
when packing his property on June 21, 2009. Plaintiff related he informed TCI staff his
“T.V. and other property was missing.”
                               CONCLUSIONS OF LAW
      {¶ 1} 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.
      {¶ 2} 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.
      {¶ 3} 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.
      {¶ 4} 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.
      {¶ 5} 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.
      {¶ 6} 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.
      {¶ 7} 7)     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 TCI staff failed to comply with internal prison regulations and the
Ohio Administrative Code, he fails to state a claim for relief.
       {¶ 8} 8)    Plaintiff cannot recover for property loss when he fails to produce
sufficient evidence to establish defendant actually assumed control over property.
Whiteside v. Orient Correctional Inst., Ct. of Cl. No. 2002-05751, 2005-Ohio-4455 obj.
overruled, 2005-Ohio-5068. Plaintiff failed to prove defendant actually exercised control
over shoes, gym shorts, sweat pants, a sweat shirt, CDs, adapter, and a fan incident to
the June 21, 2009 transfer.
       {¶ 9} 9)    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.
       {¶ 10} 10) 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
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} 11) 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.
       {¶ 12} 12) 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.
       {¶ 13} 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.
      {¶ 14} 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.    All items plaintiff
claimed as stolen were indistinguishable and consequently, defendant had no duty to
search for the reported stolen property.
      {¶ 15} 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} 16) Plaintiff has failed to prove, by a preponderance of the evidence, 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




CLEVELAND SPENCER

      Plaintiff

      v.

TRUMBULL CORRECTIONAL

      Defendant

      Case No. 2010-08098-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:

Cleveland Spencer, #692-046                       Gregory C. Trout, Chief Counsel
Bellamy Creek Corr. Fac.                          Department of Rehabilitation
1727 West Bluewater Highway                       and Correction
Ionia, Michigan 48846                             770 West Broad Street
                                                  Columbus, Ohio 43222
RDK/laa
12/7
Filed 1/7/11
Sent to S.C. reporter 3/4/11
