Case No. 2002-04852-AD.Court of Claims of Ohio.
May 1, 2003.
MEMORANDUM DECISION
FINDINGS OF FACT
{¶ 1} 1) Plaintiff, Raymond E. Dillingham, Jr., an inmate incarcerated at defendant’s Pickaway Correctional Institution (PCI), asserted he was transferred from the institution’s general population to a segregation unit on or about February 16, 2002.
{¶ 2} 2) Incident to his transfer, plaintiff’s property was delivered into the custody of PCI staff. The packed property was stored in four net bags and one plastic bag.
{¶ 3} 3) When he was released from the segregation unit on or about March 1, 2002, plaintiff regained possession of his personal property. However, plaintiff explained defendant’s personnel returned three net bags containing property instead of four. Plaintiff asserted the contents of the fourth unreturned net bag included the following items: fifteen cassette tapes, two pairs of gym shorts, two pairs of underwear, six pairs of socks, two sweat suits, nine t-shirts, three towels, three wash cloths, four tablets, eleven envelopes, two bags of chips, one package of cheese, a pair of sunglasses, four jars of vaseline, four bags of popcorn, a tube of toothpaste, a bar of soap, a can opener, two containers of oil, three packs of dental floss, and a pair of shoes. Plaintiff alleged over eighty separate and distinct items were stored in one net bag which supposedly was lost while under defendant’s control. Plaintiff filed this complaint seeking to recover $319.48, the estimated value of the alleged missing property.
{¶ 4} 4) Defendant denied any liability in this matter. Defendant denied any of plaintiff’s property was lost while stored under the custody of PCI staff. Defendant asserted all of plaintiff’s property which was packed on February 16, 2002 was subsequently returned. Defendant asserted plaintiff has failed to produce evidence establishing his property was lost while under the control of PCI personnel.
CONCLUSIONS OF LAW {¶ 5} 1) 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.
{¶ 6} 2) 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} 3) 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.
{¶ 8} 4) 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.
{¶ 9} 5) Plaintiff has failed to prove, by a preponderance of the evidence, his property was stolen or lost as a proximate result of any negligence on the part of defendant. Fitzgerald v. Department of Rehabilitation and Correction (1998), 97-10146-AD.
{¶ 10} Having considered all the evidence in the claim file and adopting the memorandum decision concurrently herewith;
{¶ 11} IT IS ORDERED THAT:
{¶ 12} 1) Plaintiff’s claim is DENIED and judgment is rendered in favor of defendant;
{¶ 13} 2) The court shall absorb the court costs of this case in excess of the filing fee.
DANIEL R. BORCHERT Deputy Clerk
Raymond E. Dillingham, Jr., plaintiff, Pro se.
Gregory C. Trout, Chief Counsel, Department of Rehabilitation and Correction, for defendant.