[Cite as Hutton v. Ohio State Penitentiary, 2010-Ohio-6667.]

                                       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




PERCY HUTTON

       Plaintiff

       v.

OHIO STATE PENITENTIARY

       Defendant

        Case No. 2010-06486-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Percy Hutton, an inmate incarcerated at defendant, Ohio State
Penitentiary (OSP), filed this action alleging that his property was confiscated and
destroyed by OSP personnel without any authorization. Plaintiff explained that a friend
of his mailed ten greeting/birthday cards to him at OSP in July 2009 and he received
notice on July 28, 2009 that seven of the ten cards were being withheld from his
possession as contraband. Plaintiff maintained that the seven confiscated cards were
subsequently destroyed by OSP staff without any authorization.           Plaintiff requested
damages in the amount of $14.00, the stated value of the seven cards that plaintiff
asserted were wrongfully destroyed. Payment of the filing fee was waived.
        {¶ 2} Defendant acknowledged destroying seven cards intended for plaintiff that
were initially received at the OSP mailroom. Defendant admitted liability for wrongfully
destroying two cards.          However, in regard to the remaining five cards, defendant
contended that the actions of OSP personnel were appropriate and in accordance with
internal policy. Defendant maintained that plaintiff “received notice under DRC4147
(Notice of Unauthorized Item)” that the withheld cards were subject to destruction.
Defendant advised that “DRC4147 states that an inmate has 15 days to respond to the
Notice or the items will be destroyed.”     Defendant submitted a blank copy of form
DRC4147, “Notice of Withholding Printed Material.” Defendant did not submit any copy
of form DRC4147 that was allegedly issued to plaintiff notifying him that printed material
was being withheld. Form DRC4147 notice allows the inmate three options concerning
disposition of withheld material.   These options include:     1) a request to have the
withheld material reviewed by defendant’s central office publication screening
committee, 2) provide authorization and postage costs to mail the withheld material to a
designated outside address, and 3) grant authorization to have the withheld material
destroyed. Form DRC4147 clearly provides that if an inmate chooses option one then
the form must be returned to the warden or designee within fifteen days of receipt of the
notice. Also, DRC 4147 states: “Failure to exercise one of the options below will be
construed as acceptance of this decision and forfeiture of the printed material.”
Defendant argued that proper procedure was followed in carrying out the destruction of
the withheld material due to the fact that plaintiff did not respond in accordance with the
options stated in form DRC4147.
      {¶ 3} Plaintiff filed a response denying that he was ever issued form DRC4147
in connection with being notified that his seven cards were being withheld. Plaintiff
related that he was actually issued form DRC4225 “Notice of an Unauthorized Item
Received” (copy submitted) notifying him that seven cards were being withheld as
contraband.   According to information on the DRC4225 notice was given that the
withheld cards would be withheld for a period of ten days. Form DRC4225 provides the
inmate with options in regard to the disposition of the declared contraband. Plaintiff has
the option to either authorize mailing and provide postage to return the withheld cards to
a designated outside address or order the destruction of the declared contraband. In
his complaint, plaintiff related that, “I wrote to the Mail Room Supervisor and appealed
the withholding of my cards.”        Plaintiff provided a copy of the document he
characterized as an appeal to the OSP Mailroom Supervisor in which he requested all
withheld material be forwarded to him. Plaintiff maintained that by filing this appeal he
complied with internal regulations regarding “Incoming Mail” being withheld.          Both
plaintiff and defendant submitted copies of internal regulation AR5120-9-17 that
addressed procedures to follow concerning “Incoming Mail.” Plaintiff noted he followed
proper procedure outlined in AR5120-9-17(H)(4) when he appealed the decision to
withhold his cards.          In his complaint, plaintiff specifically referenced AR5120-9-
17(H)(4)(5)(6)(7)(8)1 as evidence that he and not defendant followed proper procedure
when addressing the issue concerning his cards being withheld.                             Plaintiff, in his
response, reasserted that proper procedure was not followed when the cards were
destroyed.
        {¶ 4} It has been previously held that, an inmate plaintiff may recover the value
of confiscated contraband property destroyed by agents of defendant when those
agents acted without authority or right to carry out the property destruction. Berg v.
Belmont Correctional Institution (1998), 97-09261-AD; Wooden v. Ohio Dept. of Rehab.
& Corr., Ct. of Cl. No. 2004-01-AD, 2004-Ohio-4820; Hemsley v. N. Cent. Correctional
Inst., Ct. of Cl. No. 2005-03946-AD, 2005-Ohio-4613; Mayfield v. Richland Correctional
Inst., Ct. of Cl. No. 2005-07976-AD, 2006-Ohio-358. In the instant claim, defendant
failed to produce any evidence that the cards intended for plaintiff were destroyed in
accordance with obtaining a forfeiture order.                 Consequently, defendant is liable to
plaintiff for all damages claimed, $14.00.


                                      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




        1
            AR5120-9-17(H)(4)(5)(6)(7)(8) state:
          “(H) Procedures for withholding correspondence are as follows:
          “(4) Decisions to withhold mail may be appealed in writing by the author to the warden or his
designee within fifteen calendar days of the date of the mailing of the notification. The appeal should
explain why the correspondence does not present a threat to the security and safety of the institution, its
staff or inmates.
          “(5) The written appeal and the correspondence will be considered by the warden or designee
who shall determine whether the correspondence will be withheld or delivered to the inmate.
          “(6) Any mail withheld from an inmate-addressee will be retained during the pendency of the
appeal or for the time in which an appeal may be filed.
          “(7) If it is determined on appeal that the correspondence does not present a threat to the safety
and security of the institution, its staff or inmates, the correspondence will be immediately delivered to the
inmate-addressee.
          “(8) If it is determined on appeal that the correspondence presents a threat to the safety and
security of the institution, its staff or inmates, or, if no appeal is taken, the mail may be returned to the
author, held as evidence for criminal prosecution or a disciplinary proceeding, or destroyed.”
PERCY HUTTON

        Plaintiff

        v.

OHIO STATE PENITENTIARY

        Defendant

         Case No. 2010-06486-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 $14.00. Court costs are assessed against defendant.




                                                  MILES C. DURFEY
                                                  Clerk

Entry cc:

Percy Hutton, #195-620                            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
10/20
Filed 11/10/10
Sent to S.C. reporter 2/11/11
