[Cite as Kennedy v. Madison Correctional Inst., 2011-Ohio-3441.]

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

PATRICK KENNEDY 

 Plaintiff 

 v. 

MADISON CORRECTIONAL INSTITUTION 

 Defendant 

Case No. 2010-10157-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

FINDINGS OF FACT 

{¶ 1} On May 20, 2009, plaintiff, Patrick Kennedy, an inmate incarcerated at 

defendant, Madison Correctional Institution (MaCI), was transferred from the general 

population to a segregation unit. Plaintiff alleged that before he was handcuffed, he 

was instructed by a corrections officer (CO) to place the items he was holding, a 

mechanical pencil, a notepad, and a cup, on the CO’s desk and that these items were 

not packed with his other property and were either lost or stolen. In addition, plaintiff 

alleged that at sometime during the transfer procedure unidentified inmates entered his 

cell and stole several items of his personal property. Plaintiff related the stolen property 

included: three mechanical pencils and one power cord. Plaintiff then listed the 

following unreported missing items: two locker mirrors, one book light, one state belt, 

replacement lead black, replacement lead red, plastic antenna holder, scented oil, 

masking tape, eraser x-large, artists ink & pencil eraser, twenty-four assorted binder 

clips, one butterscotch disks, one orange slices, one pepperoni, one pizza kit, and two 
Case No. 2006-03532-AD - 2 - MEMORANDUM DECISION

Case No. 2006-03532-AD - 2 - MEMORANDUM DECISION

mozzarella cheeses. Additionally, plaintiff requested unspecified damages for the cost 

of copies, postage and legal assistance. Postage and copying expenses are not 

compensable in a claim of this type. The request to include these expenses in the 

damage claim is denied and shall not be further addressed. 

{¶ 2} Plaintiff implied his property was stolen as a proximate cause of 

negligence on the part of MaCI staff in failing to adequately protect the property from 

theft attempts. Plaintiff filed this complaint seeking to recover $86.30, the stated 

replacement cost of his alleged stolen property. The filing fee was paid. 

{¶ 3} Defendant denied any liability in this matter contending plaintiff failed to 

offer any evidence to prove his property was stolen as a proximate result of any 

negligent conduct on the part of defendant. Defendant denied ever exercising control 

over any of the alleged stolen property items. Defendant argued no evidence has been 

offered to establish plaintiff suffered property loss as a result of any act attributable to 

MaCI personnel. Defendant advised MaCI staff searched for plaintiff's property but did 

not locate any of the alleged missing items. 

{¶ 4} Plaintiff filed a response essentially reiterating the allegations made in the 

complaint. 
Case No. 2006-03532-AD - 3 - MEMORANDUM DECISION

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's failure to prove delivery of the claimed missing 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. 

{¶ 10} 6) Plaintiff cannot recover for property loss when he fails to produce 

sufficient evidence to establish defendant actually assumed control over the property. 

Whiteside v. Orient Correctional Inst., Ct. of Cl. No. 2002-05751, 2005-Ohio-4455, obj 

overruled, 2005-Ohio-5068. 
Case No. 2006-03532-AD - 4 - MEMORANDUM DECISION

Case No. 2006-03532-AD - 4 - MEMORANDUM DECISION

{¶ 11} 7) 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. 

{¶ 12} 8) "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, ¶ 41, 

citing Miller v. Paulson (1994), 97 Ohio App. 3d 217, 221, 646 N.E. 2d 521; 

{¶ 13} 9) 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 (1985), 84-02425. Plaintiff 

must show defendant breached a duty or ordinary or reasonable care. Williams. 

{¶ 14} 10) 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. 

{¶ 15} 11) The fact defendant supplied plaintiff with a locker box to secure 
Case No. 2006-03532-AD - 5 - MEMORANDUM DECISION

valuables constitutes prima facie evidence of defendant discharging its duty of 

reasonable care. Watson v. Department of Rehabilitation and Correction (1987), 86-

02635-AD. 

{¶ 16} 12) 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. 

{¶ 17} 13) Plaintiff may show defendant breached its duty of reasonable care by 

providing evidence of an unreasonable delay in packing inmate property. Springer v. 

Marion Correctional Institution (1981), 81-05202-AD. 

{¶ 18} 14) However, in the instant claim, plaintiff has failed to prove any delay in 

packing his inmate property resulted in any property theft. Stevens v. Warren 

Correctional Institution (2000), 2000-05142-AD. 

{¶ 19} 15) Moreover, 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. In the instant case, the 

claimed stolen property was indistinguishable and, therefore, despite the fact that 

defendant conducted a fruitless search, no duty to search arose. Wallace v. Grafton 

Corr. Inst., Ct. of Cl. No. 2009-01743, 2009-Ohio-5741. 

{¶ 20} 16) 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. 
Case No. 2006-03532-AD - 6 - MEMORANDUM DECISION

Case No. 2006-03532-AD - 6 - MEMORANDUM DECISION

2005-11094-AD, 2006-Ohio-7207. 

{¶ 21} 17) Plaintiff has failed to prove, by a preponderance of the evidence, 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 

PATRICK KENNEDY 

 Plaintiff 
Case No. 2006-03532-AD - 7 - MEMORANDUM DECISION

 v. 

MADISON CORRECTIONAL INSTITUTION 

 Defendant 

Case No. 2010-10157-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: 

Patrick Kennedy, #393-577 Gregory C. Trout, Chief Counsel 

1851 St. Rt. 56 Department of Rehabilitation 

P.O. Box 740 and Correction 

London, Ohio 43140-0740 770 West Broad Street 

 Columbus, Ohio 43222 

SJM/laa 

3/18 

Filed 3/31/11 
Case No. 2006-03532-AD - 8 - MEMORANDUM DECISION

Case No. 2006-03532-AD - 8 - MEMORANDUM DECISION

Sent to S.C. reporter 6/30/11