[Cite as Wilson v. Pickaway Corr. Inst., 2011-Ohio-3954.]



                                        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




NEKUMA WILSON

       Plaintiff

       v.

PICKAWAY CORRECTIONAL INSTITUTION

       Defendant

        Case No. 2010-12028-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION

                                           FINDINGS OF FACT
        {¶ 1} On July 24, 2010, plaintiff, Nekuma Wilson, an inmate incarcerated at
defendant, Pickaway Correctional Institution (PCI), was transferred to an outside
hospital for medical treatment. Plaintiff’s personal property was inventoried, packed,
and delivered into the custody of PCI staff incident to this transfer.
        {¶ 2} Plaintiff asserted that he was not permitted to retrieve his property until he
was released from segregation1 on August 18, 2010, at which time plaintiff claimed that
most of his personal property was missing.                      Specifically, plaintiff alleged that the
following items were missing from the property items returned to him: commissary and
food box items, Sony CD player, Sony tape player, K-TV, Koss headphones, Norelco
beard trimmers, and other nonspecific items. Plaintiff also claimed that a pair of Nike
running shoes was taken from him prior to his transfer to the hospital and subsequently
lost by PCI staff. Plaintiff suggested that the bulk of his missing property was stolen at
sometime after he was transferred and before the property was packed by a Corrections

        1
            Apparently plaintiff was placed in segregation upon his return to the institution from the hospital.
Officer (CO).
       {¶ 3} Plaintiff insisted that his property was locked in his locker box and that his
TV was intact and on his TV stand prior to his transfer. Plaintiff stated that the CO
delayed in packing his property for almost five hours and that such delay constituted
negligence by PCI staff. Plaintiff pointed out that he immediately reported the theft to
PCI personnel.
       {¶ 4} Plaintiff filed this complaint seeking to recover damages totaling $865.10,
the stated replacement cost of all lost or stolen property. Plaintiff contended that his
property was stolen as a proximate result of negligence on the part of defendant in
failing to provide adequate protection and security. The $25.00 filing fee was paid.
       {¶ 5} Defendant argued that plaintiff has failed to establish his property was
stolen as a proximate cause of any negligent act or omission on the part of PCI
personnel. Defendant asserted that plaintiff’s property was moved by CO Boyd to a
secure location under defendant’s supervision once notice of the transfer was received.
The property was later inventoried, packed, and placed in storage.              In addition,
defendant contended that plaintiff’s locker box was found unlocked at the time of
transfer and that when asked about this at the time he was released from segregation,
plaintiff informed Lieutenant Detty that he did not have a lock to secure his property.
Accordingly, defendant denied any liability for the loss of plaintiff’s property. Defendant
contended that any duty to protect plaintiff’s property was discharged when plaintiff was
supplied with a locker box to secure his property. Defendant asserted plaintiff’s property
was in all likelihood stolen by other inmates due to plaintiff’s failure to secure his locker
box with a lock.
       {¶ 6} Plaintiff filed a response essentially reiterating the allegations contained in
his complaint. Plaintiff insisted that his locker box was locked and that defendant was
negligent in failing to protect his property.
                                     CONCLUSIONS OF LAW
       {¶ 7} 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} 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.
      {¶ 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} Plaintiff’s failure to prove delivery of his 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.
      {¶ 12} 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.
      {¶ 13} 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, 788 N.E. 2d 1088, ¶8 citing Menifee v. Ohio
Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707.
      {¶ 14}     “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; and Mussivand v.
David (1989), 45 Ohio St. 3d 314, 318, 544 N.E. 2d 265.
      {¶ 15}     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 that defendant breached a duty of ordinary or reasonable care. Williams.
      {¶ 16}     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.
       {¶ 17}      The fact that defendant supplied plaintiff with a locker box to secure
valuables constitutes prima facie evidence of defendant discharging its duty of
reasonable care. Watson v. Department of Rehabilitation and Correction (1987), 86-
02635-AD.
       {¶ 18}      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. In the instant action, the
trier of fact finds that the statements of plaintiff are not particularly persuasive.
       {¶ 19}      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.
       {¶ 20}      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. In the instant case, the
bulk of plaintiff’s property items claimed were indistinguishable and, therefore, no duty
to search arose.
       {¶ 21}      Plaintiff has failed to prove, by a preponderance of the evidence, that
defendant was negligent in respect to making any attempts to recover distinguishable or
indistinguishable stolen property. See Williams v. Dept. of Rehab. & Corr., Ct. of Cl. No.
2005-11094-AD, 2006-Ohio-7207. Plaintiff has failed to prove defendant delayed in
conducting any search or conducted an inadequate search.
       {¶ 22}      Plaintiff may show defendant breached its duty of reasonable care by
providing evidence of an unreasonable delay in packing inmate property. Springer v.
Marion Correctional Institution (1981), 81-05202-AD.
       {¶ 23}      In the instant claim, plaintiff has failed to prove any delay in packing his
property resulted in any property theft.        Stevens v. Warren Correctional Institution
(2000), 2000-05142-AD; Knowlton v. Noble Corr. Inst., Ct. of Cl. No. 2005-06678-AD,
2005-Ohio-4328.
      {¶ 24}    Plaintiff has failed to prove, by a preponderance of the evidence, that
any of his property was stolen 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




NEKUMA WILSON

        Plaintiff

        v.

PICKAWAY CORRECTIONAL INSTITUTION

        Defendant

        Case No. 2010-12028-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 defendant. Court costs are assessed against plaintiff.



                                                 ________________________________
                                                 MILES C. DURFEY
                                                 Clerk

Entry cc:

Nekuma Wilson, #577-592                          Gregory C. Trout, Chief Counsel
P.O. Box 209                                     Department of Rehabilitation
Orient, Ohio 43146                               and Correction
                                                 770 West Broad Street
                                                 Columbus, Ohio 43222
SJM/laa
4/7
Filed 4/27/11
Sent to S.C. reporter 8/10/11
