ALLMAN v. WARREN CORRECTIONAL INSTITUTION, 2008-09457-AD (5-18-2009)


2009-Ohio-4665

DERRICK ALLMAN, Plaintiff, v. WARREN CORRECTIONAL INSTITUTION, Defendant.

No. 2008-09457-AD.Court of Claims of Ohio.
Filed May 18, 2009.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) Plaintiff, Derrick Allman, an inmate incarcerated at defendant, Warren Correctional Institution (WCI), alleged that during various episodes involving WCI personnel including shakedown searches, cell transfers, and disciplinary transfers, he suffered property loss when multiple items he had in his possession were confiscated, discarded, or stolen. Plaintiff also claimed that other property items he possessed were stolen by fellow inmates.

{¶ 2} 2) Plaintiffs claimed property loss included the following: photographs of Janet Jackson, five photo albums, two pairs of eyeglasses, one pair of blue mesh shorts, cassette tapes, a compact disc player, headphones, a radio/cassette player, compact discs, a watch, coffee, creamer, and sugar cubes. Plaintiff related that the replacement value of the listed property amounts to $1,698.75 and that he has filed this complaint seeking to recover that amount. Payment of the filing fee was waived.

{¶ 3} 3) Plaintiff submitted copies of two Theft/Loss Reports he filed; one dated February 5, 2007 and one dated February 17, 2007. On these two occasions

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plaintiff reported that his photo albums and his compact disc player had been stolen.

{¶ 4} 4) Defendant denied liability based on the contention that plaintiff failed to prove any of his property was lost, stolen, discarded, or confiscated as a proximate cause of negligence on the part of WCI staff.

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 it 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 citin 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, citin 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.

{¶ 7} 3) 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} 4) 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} 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’s failure to prove delivery of certain 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.

{¶ 11} 7) 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),

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{¶ 12} 8) 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 essential issues 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.

{¶ 13} 9) The mere allegation that a theft occurred is insufficient to show defendant’s negligence. Williams v. Southern Ohio Correctional Facility (1985), 83-07091-AD; Custom v. Southern Ohio Correctional Facility (1985), 84-02425. Plaintiff must show that defendant breached a duty of ordinary or reasonable care. Williams.

{¶ 14} 10) Defendant is not responsible for theft 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.

{¶ 15} 11) Plaintiff has failed to prove, by a preponderance of the evidence, that any property items were 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.

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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.

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