[Cite as Poston v. Warren Correctional Inst., 2010-Ohio-5218.]

                                      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




GRADY POSTON

       Plaintiff

       v.

WARREN CORRECTIONAL INSTITUTION

       Defendant

        Case No. 2009-09604-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)       Plaintiff, Grady Poston, an inmate incarcerated at defendant, Warren
Correctional Institution (WCI), alleged several items of his personal property were stolen
from his cell housing unit on October 25, 2009, at a time when he and his cellmate were
away from the unit. Plaintiff recalled he and his cellmate left the cell to go to the WCI
dining hall and when he returned he discovered his converter box, two remote controls,
and a pair of gym shoes were missing. Plaintiff submitted a copy of an “Inmate Property
Theft/Loss Report” (Theft Report) that was filed incident to his reporting the theft.
According to information contained in the Theft Report, WCI staff searched several cells
looking for plaintiff’s missing property. However, no items were recovered. The Theft
Report is dated November 5, 2009 and a search for the reported stolen property was
conducted that same day.
        {¶ 2} 2)       Plaintiff suggested defendant was responsible for his property being
stolen, specifically the WCI officer who was on duty in his housing unit on October 25,
2009. Plaintiff maintained his property was stolen as a proximate cause of negligence
on the part of defendant. Plaintiff seeks recovery of damages in the amount of $110.00,
the stated replacement cost of the claimed stolen property. Payment of the filing fee
was waived.
       {¶ 3} 3)       Defendant denied liability in this matter arguing that plaintiff did not
offer sufficient evidence to prove any of his property was stolen as a proximate cause of
negligence on the part of WCI staff. Defendant contended plaintiff failed to offer any
evidence to establish his property was stolen or unrecovered as a result of any
negligent conduct on the part of WCI personnel.
       {¶ 4} 4)       Plaintiff filed a response suggesting his cell door was unlocked by
defendant’s employee on October 25, 2009, thereby facilitating the theft of his property.
Furthermore, plaintiff asserted WCI staff have a duty to “make rounds to ensure that
each and every cell door is locked” when inmates are absent from their cells during
dinner times. Plaintiff denied any search was made for his property despite the fact he
submitted his copy of a Theft Report that noted a search was conducted after he
reported the theft.
                                  CONCLUSIONS OF LAW
       {¶ 5} 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.
       {¶ 6} 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, 798 N.E.
2d 1121, ¶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.
       {¶ 7} 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.
       {¶ 8} 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.
       {¶ 9} 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.
       {¶ 10} 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 brining
about the harm.     Parks v. Department of Rehabilitation and Correction (1985), 85-
01546-AD.
       {¶ 11} 7)    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} 8)    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} 9)    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 possession in the cell while they are absent from the cell. Smith v.
Rehabilitation and Correction (1978), 77-0440-AD.
       {¶ 14} 10) 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.
       {¶ 15} 11) 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.
       {¶ 16} 12) 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.
       {¶ 17} 13) 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.
      {¶ 18} 14) Plaintiff has failed to prove, by a preponderance of the evidence, that
any of his 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.




                               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




GRADY POSTON

      Plaintiff

      v.

WARREN CORRECTIONAL INSTITUTION

      Defendant

      Case No. 2009-09604-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:

Grady Poston, #545-398                          Gregory C. Trout, Chief Counsel
P.O. Box 120                                    Department of Rehabilitation
Lebanon, Ohio 45036                             and Correction
                                                770 West Broad Street
                                                Columbus, Ohio 43222
RDK/laa
6/3
Filed 6/21/10
Sent to S.C. reporter 10/22/10
