Hankins v. Ohio Dept. of Rehab. & Corr.
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[Cite as Hankins v. Ohio Dept. of Rehab. & Corr., 2005-Ohio-1391.] IN THE COURT OF CLAIMS OF OHIO JERRY A. HANKINS : Plaintiff : v. : CASE NO. 2004-09274-AD OHIO DEPARTMENT OF : MEMORANDUM DECISION REHABILITATION AND CORRECTIONS : Defendant : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} 1) inmate In mid August, 2003, plaintiff, Jerry A. Hankins, an incarcerated at defendant s North Central Correctional Institution ( NCCI ), suffered property loss when approximately $78.00 worth of commissary purchases were stolen from his locker box. Two inmates, Straub and Walters, were identified as the individuals who stole plaintiff s property. {¶ 2} 2) Plaintiff explained inmates Straub and Walters subsequently appeared before the NCCI Rules Infraction Board and were ordered to pay restitution for the property items they stole from plaintiff. Plaintiff related he only received $1.80 in restitution from inmates Straub and Walters before they left NCCI. Since Straub and Walters are unavailable to pay restitution, plaintiff has reasoned defendant should be responsible for reimbursing him funds representing the replacement cost of his stolen property. Consequently, plaintiff filed this complaint seeking to recover the remaining restitution owed, plus filing fees, and postage and copying costs. Postage and copying costs are not recognizable damage elements in a claim of this type, are therefore, denied, and shall not further be addressed. Plaintiff s total claim amounts to $101.20. The filing fee was paid. {¶ 3} 3) Defendant acknowledged the NCCI Rules Infraction Board ordered inmates Straub and Walters to pay plaintiff restitution for stolen property. However, both Straub and Walters never had enough funds in their inmate accounts before release to make restitution possible. Defendant explained, [a]ccording to the Ohio Administrative Code 5120-3-08(C), the Rules Infraction Board may recommend a limited reduction in future earnings for disciplinary reasons such as restitution. 1 No administrative code section or statute provides any mechanism for individuals in plaintiff s position to seek unpaid restitution from defendant. Essentially, defendant contended it had no duty to reimburse plaintiff for uncollected restitution. {¶ 4} 4) Plaintiff insisted, in his response to defendant s investigation report, defendant could have collected restitution from inmate Straub at sometime incarceration in September, 2004. before his release from Plaintiff reasserted defendant should bear the responsibility for paying him the remainder of the unpaid restitution. authority However, establishing plaintiff defendant s circumstance to the one presented. did liability not in produce a any similar Plaintiff argued defendant was negligent in failing to make a reasonable attempt to collect the restitution. 1 Ohio Administrative Code 5120-3-08(C)(2) states: (C) Reduction of compensation for disciplinary reasons. (2) The rules infraction board may recommend a reduction of future compensation due to a rules infraction. Reductions shall require the approval of the managing officer and shall not exceed fifty per cent of normal compensation and shall not be reduced below three dollars. Additionally, Ohio Administrative Code 5120-9-07(K)(5) stated: (K) The rules infraction board shall have the authority to impose or suspend the following action in disposing of rule infractions. The following are authorized dispositions: (5) Recommending to the managing officer that the inmate be required to make reasonable restitution, or that his earnings be reduced by reduction of earnings pursuant to rule 5120-3-02 of the Administrative Code. This code section was in effect at the time of plaintiff s incident. CONCLUSIONS OF LAW {¶ 5} 1) The mere fact that a theft occurred is insufficient to show defendant s Correctional defendant negligence. Facility breached a Williams (1985), duty 84-02425. of ordinary v. Southern Plaintiff or must reasonable Ohio show care. Williams, supra. {¶ 6} 2) 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. {¶ 7} 3) 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), 8501546-AD. {¶ 8} 4) Plaintiff s claim sets forth an action sounding in negligence. In order for plaintiff to prevail upon a claim of negligence, he must prove, by a preponderance of the evidence, that defendant owed him a duty, that it breached that duty, and that the breach proximately caused his injury. (1981), 67 Ohio St. 2d 282, 285. Strother v. Hutchinson The Ohio Administrative Code does not create an affirmative duty on the part of defendant to collect and disburse restitution. Furthermore, defendant has no duty to indemnify plaintiff for uncollected restitution. IN THE COURT OF CLAIMS OF OHIO JERRY HANKINS : Plaintiff : v. : CASE NO. 2004-09274-AD OHIO DEPARTMENT OF : ENTRY OF ADMINISTRATIVE REHABILITATION AND CORRECTIONS DETERMINATION : Defendant : : : : : : : : : : : : : : : : : 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. are assessed against plaintiff. Court costs The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal. ________________________________ DANIEL R. BORCHERT Deputy Clerk Entry cc: Jerry Hankins, #362-109 670 Marion-Williamsport Road P.O. Box 1812 Marion, Ohio 43301-1812 Plaintiff, Pro se Gregory C. Trout, Chief Counsel Department of Rehabilitation and Correction 1050 Freeway Drive North Columbus, Ohio 43229 For Defendant DRB/RDK/laa 3/1 Filed 3/16/05 Sent to S.C. reporter 3/25/05
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