Wright v. Ohio Dept. of Rehab. & Corr.

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[Cite as Wright v. Ohio Dept. of Rehab. & Corr., 2005-Ohio-4217.] IN THE COURT OF CLAIMS OF OHIO JAMES WRIGHT : Plaintiff : v. : CASE NO. 2005-01170-AD : MEMORANDUM DECISION DEPARTMENT OF REHABILITATION AND CORRECTION : Defendant : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} 1) On or about August 24, 2004, agents of defendant, Department of Rehabilitation and Correction, conducted a massive wide ranging search at defendant s North Central Correctional Institution ( NCCI ). This search was conducted in response to an inmate homicide which had occurred at the institution some two weeks before August 24, 2004. were required to provide During the search, inmates at NCCI urine samples for drug testing. Plaintiff, James Wright, was one of thirty inmates at NCCI who had a positive urine test for the presence of drugs. Because of this positive drug test, plaintiff was scheduled to be transferred from NCCI to a segregation unit at defendant s Marion Correctional Institution ( MCI ). {¶ 2} 2) Incident to the scheduled transfer, plaintiff s personal property was placed under the custody and control of NCCI staff. NCCI personnel compiled an inventory property in preparation for his transfer to MCI. of plaintiff s property inventoried transferred with plaintiff to MCI. at NCCI of plaintiff s Apparently, all was subsequently Plaintiff related that he requested and was granted permission from NCCI staff to set aside certain items of his property for mailing home before the transfer to MCI. However, according to plaintiff, the property he set aside ( shorts, boxers, letters, cards, mail, handballs, gym shoes, cup, bowl, and 3 sets of motions ) were never mailed to his home address from NCCI. While plaintiff was transferred to a segregation unit at MCI, certain items of his personal property were classified as contraband and confiscated. The confiscated items include a cup, mail, a porn folder, two handballs, a state issue coat, four tshirts, one pair of boxer shorts, and a towel. These contraband articles were forfeited through an approved order from the Marion County Common Pleas Court dated December 2, 2004. The forfeited items were destroyed in accordance with the forfeiture order. {¶ 3} 3) On September 9, 2004, MCI personnel further reduced plaintiff s property in preparation for transfer from MCI to the Toledo Correctional Institution ( ToCI ). The withheld property items were foodstuffs and included the following: two bags of chips, two soups, one bag of coffee, a box of tea bags, two boxes of macaroni and cheese, a jar of honey, a bottle of hot sauce, one box of processed cheese spread, a can of fish, and one salsa. Plaintiff elected to mail these withheld articles to an outside address. A package containing the withheld foodstuffs was mailed on September 12, 2004, to Kathy Drake at 19 Jenkin Drive, Dayton, Ohio 45427-2618. Plaintiff authorized the mailing of his foodstuffs and paid for the cost of mailing. {¶ 4} 4) Plaintiff has asserted several items of his personal property were lost while under the control of defendant s employees from the time the property was originally packed on or about August 23, 2004 to the time plaintiff arrived at ToCI and regained possession of his property. Furthermore, plaintiff originally claimed none of his property was ever mailed home although he acknowledged signing a cash slip to authorize payment of postage for the mailing of his property. Plaintiff filed this complaint seeking to recover $659.08, the estimated replacement value of his alleged missing property which plaintiff contended was lost while under defendant s control. were lost: Plaintiff insisted the following items one pair of boots, a walkman, a set of headphones, two books, a blanket, three pairs of gym shorts, four towels, six boxer shorts, four cassette tapes, a pair of gloves, forty photographs, four strap t-shirts, a pair of Fila gym shoes, two Joe Boxers, four footies, three legal motions, two handballs, a cup, a bowl, and various products purchased from the institution commissary. All property claimed, with the exception of a pair of boots, two pairs of gym shorts, and a bowl, was taken into the custody and control of NCCI staff. Evidence has shown other claimed items such as the strap t-shirts, Joe Boxers, footies, legal motions, handballs, towel, and a cup were confiscated and subsequently forfeited through court order. {¶ 5} 5) Defendant The $25.00 filing fee was paid. admitted liability for the loss of plaintiff s walkman, headphones, two books, a blanket, and four cassette tapes. However, defendant has contended plaintiff s damage claim totaling $113.62 for these property items seems excessive. Defendant did not offer an alternative suggestion regarding adequate damages for plaintiff s loss. {¶ 6} 6) Defendant denied liability for any other property loss claimed by plaintiff. Defendant provided evidence establishing plaintiff s commissary purchases were mailed home. Also, defendant produced footies, evidence proving the strap t-shirts, legal motions, handballs, a cup, and Joe Boxers were properly forfeited. Defendant insisted all other property items claimed as lost were either packed and forwarded to ToCI or never packed at all. Evidence has shown defendant did not pack or exercise control over a pair of boots, two pairs of gym shorts, and a bowl incident to plaintiff s transfer from NCCI to MCI. Evidence has shown plaintiff s photographs, gloves, gym shoes, and cup were forwarded to ToCI. Although defendant s personnel packed four towels, one pair of gym shorts, and six pairs of undershorts at NCCI, these items were not included on plaintiff s property inventory when he arrived at ToCI. {¶ 7} 7) Plaintiff, in his response to defendant s investigation report, maintained defendant should bear liability for all property claimed. Plaintiff acknowledged his mother received a box in the mail containing his commissary purchases. However, plaintiff alleged all containers holding food products had been opened and the contents were dumped into the box. Plaintiff surmised defendant s employees effectively destroyed all these commissary items before mailing the package to his mother. Plaintiff stated he owned two pairs of gym shoes and two photo albums when he was incarcerated at NCCI. However, plaintiff professed he received one pair of gym shoes and one photo album when he arrived at ToCI. This allegation is unsupported. Additionally, plaintiff argued the forfeiture of his confiscated property was improper. CONCLUSIONS OF LAW {¶ 8} 1) 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} 2) 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} 3)Plaintiff s failure to prove delivery of additional shoes, additional photographs, boots, two pairs of gym shorts, and a bowl 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} 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), 8501546-AD. {¶ 12} 5)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, paragraph one of the syllabus. The court is free to believe or disbelieve, all or any part of each witness s testimony. State v. Anthill (1964), 176 Ohio St. 61. {¶ 13} 6)Plaintiff has failed to prove, by a preponderance of the evidence, he sustained the loss of gym shoes, photographs, gloves, and a cup as a result of any negligence on the part of defendant. Fitzgerald v. Department of Rehabilitation and Correction (1998), 97-10146-AD. {¶ 14} action, 7)In order to recover against a defendant in a tort plaintiff reasonable basis must for produce sustaining evidence his which claim. If furnishes his a evidence furnishes a basis for only a guess, among different possibilities, as to any essential issue in the case, he fails to sustain the burden as to such issue. Landon v. Lee Motors, Inc. (1954), 161 Ohio St. 82. {¶ 15} 8)Defendant is not responsible for an item once it is shipped out of the facility. responsibility of Rehabilitation and the mail At that point, the item is the carrier. Correction (1986), Owens v. Department 85-08061-AD; Gilbert of v. C.R.C. (1990), 89-12968-AD. Plaintiff has failed to prove the mailed food items were destroyed by defendant prior to mailing. {¶ 16} 9)An inmate plaintiff is barred from recovering the value of confiscated property formally forfeited and subsequently destroyed pursuant to a properly obtained court order. Dodds v. Department of Rehabilitation and Correction (2000), 2000-03603-AD. Plaintiff s claim for his destroyed confiscated property is dismissed. {¶ 17} 10) Negligence on the part of defendant has been shown in respect to the loss of a walkman, headphones, books, blanket, cassette tapes, one pair of gym shorts, four towels, and six pairs of undershorts. Baisden v. Southern Ohio Correctional Facility (1977), 76-0617-AD. {¶ 18} 11) The assessment of damages is a matter within the province of the trier of fact. Litchfield v. Morris (1985), 25 Ohio App. 3d 42. {¶ 19} 12) Where the existence of damage is established, the evidence need only tend to show the basis for the computation of damages to a fair degree of probability. (1992), 82 Ohio App. 3d 148. Brewer v. Brothers Only reasonable certainty as to the amount of damages is required, which is that degree of certainty of which the nature of the case admits. Bemmes v. Pub. Emp. Retirement Sys. Of Ohio (1995), 102 Ohio App. 3d 782. {¶ 20} 13) The court finds defendant liable to plaintiff in the amount of $175.00, plus the $25.00 filing fee, which may be reimbursed as compensable damages pursuant to the holding in Bailey v. Ohio Department of Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19. IN THE COURT OF CLAIMS OF OHIO JAMES WRIGHT : Plaintiff : v. : CASE NO. 2005-01170-AD : ENTRY OF ADMINISTRATIVE DETERMINATION DEPARTMENT OF REHABILITATION AND CORRECTIONS : 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 plaintiff in the amount of $200.00, which includes the filing fee. Court costs are assessed against defendant. 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: James Wright, #309-571 2001 East Central Avenue Toledo, Ohio 43608 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 6/29 Filed 7/26/05 Sent to S.C. reporter 8/11/05

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