[Cite as Alderson v. Ohio Dept. of Rehab. & Corr. , 2011-Ohio-2889.] 

# 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

LEE A. ALDERSON

Plaintiff

v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

Defendant

Case No. 2010-09451-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

FINDINGS OF FACT {¶ 1} 1) On December 7, 2009, employees of defendant, Department of Rehabilitation and Correction (DRC), conduct ed a shakedown search at the Pickaway

Correctional Institution (PCI), a DRC facility. Plaintiff, Lee A. Alderson, an inmate incarcerated at PCI, stated that several items of his personal property were stolen after DRC staff failed to ensure his property was secure at the conclusion of the shakedown search. Specifically, plaintiff asserted that a lock, one bag of coffee, eight bags of popcorn, twelve beef soups, three chili wi th beans, one sausage, one bagel, one cappuccino, two cupcakes, eleven b eef & chees e stix, thr ee beef stix , one creme cookie, one bottle cheddar cheese, two es presso coffees, and several CD’s were missing from his property. {¶ 2} 2) Plaintiff further alleged defendant failed to follow its own internal policies and procedures with regard to the grievances he has filed. Consequently, plaintiff filed this complaint seeking to recover $204.29, the stated replacement cost for his missing property. The $25.00 filing fee was paid and plaintiff requestedreimbursement of that cost along with his damage claim. {¶ 3} 3) Defendant denied liability and conten ded that plaintiff failed to offer any evidence to prove that DRC personnel acted negligently during the December 7, 2009 shakedown search at PCI. Defendant maintained plaintiff’s property was not confiscated as contraband and suggested that plaintiff’s missing items may “have been misplaced, stolen, traded, or gambled away” by plaintiff. Defendant further asserted plaintiff did not produce any evidence to establish any of his property items were lost or

stolen while under the control of PCI staff. {¶ 4} 4) Plaintiff filed a response arguing that he was not allowed to remain in his cell during the shakedown and that ther efore, DRC staff assumed responsibility for his property at the time he was ordered to leave the area. Secondly, plaintiff contended that defendant failed to comply with the administrative rules for shakedown searches and grievance procedures.

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 that 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) 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 issues, as to any issue 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. {¶ 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. {¶ 11} 7) The credibility of witnesses and the weight attributable to their testimony are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, 39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is free to believe or disbelieve, all or any part of each witness’s testimony. State v. Antill (1964), 176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. In the instant action, the trier of fact finds that the statements of plaintiff are not particularly persuasive. {¶ 12} 8) Plaintiff’s failure to prove delivery of the above listed 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. {¶ 13} 9) In addition, prison regulations, including those contained in the Ohio Administrative Code, "are primarily designed to guide correctional officials in prison administration rather than to confer rights on inmates." State ex rel. Larkins v.

Wilkinson , 79 Ohio St. 3d 477, 479, 1997-Ohio-139, 683 N.E. 2d 1139, citing Sandin v.

Conner (1995), 515 U.S. 472, 481-482, 115 S. Ct. 2293, 132 L. Ed. 2d 418. Additionally, this court has held that "even if defendant had violated the Ohio Administrative Code, no cause of action would exist in this court. A breach of internal regulations in itself does not constitute negligence." Williams v. Ohio Dept. of Rehab.

and Corr . (1993), 67 Ohio Misc. 2d 1, 3, 643 N.E. 2d 1182. Accordingly, to the extent that plaintiff alleges that DRC somehow viol ated internal prison re gulations and the Ohio Administrative Code, he fails to state a claim for relief. See Sharp v. Dep't of Rehab. &

Corr ., Ct. of Cl. No. 2008-02410-AD, 2008-Ohio-7064, ¶5. {¶ 14} 10) Plaintiff has failed to prove, by a preponderance of the evidence, that he sustained any loss as a result of any negligence on the part of defendant. Fitzgerald v. Department of Rehabilitation and Correction (1998), 97-10146-AD.

# 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

LEE A. ALDERSON

Plaintiff

v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

Defendant

Case No. 2010-09451-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:

Lee Alderson, #558-101 Gregory C. Trout, Chief Counsel P.O. Box 209 Department of Rehabilitation 11781 St. Rt. 762 and Correction Orient, Ohio 43146 770 West Broad Street Columbus, Ohio 43222 SJM/laa 3/18Filed 3/25/11 Sent to S.C. reporter 6/9/11