Case No. 2002-10275-AD.Court of Claims of Ohio.
May 8, 2003.
MEMORANDUM DECISION FINDINGS OF FACT
{¶ 1} 1) Plaintiff, Leonardo Frazier, an inmate incarcerated at defendant, Mansfield Correctional Institution (ManCI), has alleged that on June 27, 2002, his magazines and books were confiscated by an employee of defendant. Apparently, the publications were confiscated because the items would not fit in plaintiff’s locker box which was already filled with personal property. Pursuant to defendant’s internal regulations, inmate property exceeding amounts which can be stored in a 2.4 cubic foot locker box is subject to confiscation.
{¶ 2} 2) Plaintiff maintained his confiscated publications were destroyed by defendant’s staff. Plaintiff denied he was given the opportunity to mail the confiscated items out of the institution. Plaintiff asserted defendant failed to follow proper procedure regarding the disposition of the seized publications. Consequently, plaintiff filed this complaint seeking to recover $73.77 for property loss, plus $25.00 for filing fee reimbursement.
{¶ 3} 3) Defendant denied any liability in this matter. Defendant related that when excess publications were found in plaintiff’s cell, incident to a shakedown search, plaintiff was given the option to either dispose of the excess publications himself or receive a conduct report for contraband possession with resulting confiscation of the excess property. Defendant professed plaintiff chose to voluntary discard the excess publications himself. Defendant contended plaintiff effectively authorized the destruction of his books and magazines. Additionally, defendant stated the discarded books and magazines were outdated and therefore were not as valuable as plaintiff has claimed.
{¶ 4} 4) Plaintiff filed a response insisting proper procedure was not followed concerning the disposition of his books and magazines. Plaintiff related he wanted to send the publications home. Plaintiff asserted the publications were destroyed by defendant’s personnel.
{¶ 5} 5) After reviewing all the evidence, the trier of fact finds plaintiff chose to voluntarily discard the excess publications.
CONCLUSIONS OF LAW {¶ 6} 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. When defendant engaged in a shakedown operation, it must exercise ordinary care in doing so. Henderson v. Southern Ohio Correctional Facility (1979), 76-0356-AD. However, 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.
{¶ 7} An inmate plaintiff may recover the value of confiscated 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. Plaintiff chose to discard his own property rather than have defendant destroy the publications. Plaintiff has failed to produce sufficient evidence to indicate he did not voluntarily discard his publications. Furthermore, plaintiff has not offered enough evidence to show the discarded materials were valued at the amount claimed.
{¶ 8} Plaintiff has no right to assert a claim for property in which he cannot prove he maintained an ownership right. DeLong v. Department of Rehabilitation and Correction (1988), 88-06000-AD; Johnson v. Southern Ohio Correctional Facility (2000), 2000-07846-AD. Any property which belonged to plaintiff and was voluntarily thrown away became abandoned property, whereby plaintiff relinquished all rights of ownership. Therefore, plaintiff has failed to prove, by a preponderance of the evidence, he sustained any property loss as a result of any negligence on the part of defendant. Fitzgerald v. Department of Rehabilitation and Correction (1998), 97-10146-AD.
{¶ 9} Having considered all the evidence in the claim file and adopting the memorandum decision concurrently herewith;
{¶ 10} IT IS ORDERED THAT:
{¶ 11} 1) Plaintiff’s claim is DENIED and judgment is rendered in favor of defendant;
{¶ 12} 2) Court costs are assessed against plaintiff.
DANIEL R. BORCHERT Deputy Clerk
Leonardo Frazier, #376-710, plaintiff, Pro se.
Gregory C. Trout, Chief Counsel, Department of Rehabilitation and Correction, for defendant.