Waterhouse v. Belmont Corr. Inst.
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[Cite as Waterhouse v. Belmont Corr. Inst. , 2004-Ohio-5135.] IN THE COURT OF CLAIMS OF OHIO RICHARD WATERHOUSE : Plaintiff : v. : CASE NO. 2004-04884-AD : MEMORANDUM DECISION BELMONT CORRECTIONAL INST. Defendant : ::::::::::::::::: FINDINGS OF FACT {¶ 1} 1) On February 22, 2004, the personal property of plaintiff, Richard Waterhouse, an inmate incarcerated at defendant, Belmont Correctional Institution (BeCI), was inventoried, packed, and delivered into the custody of BeCI staff. The delivered property was stored in the BeCI staff restroom. {¶ 2} 2) On or about March 4, 2004, plaintiff regained possession of his property and complained several items were missing from the returned articles. Plaintiff asserted various foodstuffs, coffee, cards, laundry soap, and a lighter were not returned. Plaintiff contended these items were lost or stolen while under the control of BeCI personnel and he has, consequently, filed this complaint seeking to recover $25.30, the estimated value of his alleged missing property, plus $25.00 for filing fee reimbursement. The requisite material filing fee was paid. {¶ 3} 3) Defendant denied any of plaintiff s property was lost or stolen during the time the items were stored in the BeCI staff restroom. Defendant explained the staff restroom is a locked secured area. Only BeCI personnel have keys to the restroom door. The restroom is periodically cleaned by inmate porters under the on-site supervision of BeCI employees. Defendant related plaintiff s property items were contained in bags. Defendant asserted the bags which were returned to plaintiff did not display any holes or other defects that could constitute some evidence of tampering indicating thieves had gained access to the property stored inside. After plaintiff informed defendant about his missing property, a search was conducted. No property was recovered. Defendant stated plaintiff had his property for approximately fifteen minutes before he returned to report missing items to BeCI personnel. {¶ 4} 4) On July 9, 2004, plaintiff filed a response to defendant s investigation report. Plaintiff insisted his property items were removed from the bags while stored in the BeCI staff restroom. Plaintiff suggested his property could have been removed from the bags by defendant s personnel or inmate painters who had access to the restroom. Plaintiff related when his property was returned he was told to make a visual inventory and report any missing items. Plaintiff further related he tried to make a report concerning missing property within five minutes after his property had been returned. 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) In order to recover against a defendant in a tort action, plaintiff must produce evidence which furnishes a basis for only a guess, among different possibilities, to any essential issues in the case, he fails to sustain the burden as to such issue. Landon v. Lee Motors, Inc. (1954), 161 Ohio St. 82. {¶ 10} 6) Plaintiff has failed to prove, by a preponderance of the evidence, his property was stolen or lost as a proximate result of any negligence on the part of defendant. Fitzgerald v. Department of Rehabilitation and Correction (1998), 97-10146-AD. IN THE COURT OF CLAIMS OF OHIO RICHARD WATERHOUSE : Plaintiff : v. : CASE NO. 2004-04884-AD : ENTRY OF ADMINISTRATIVE DETERMINATION BELMONT CORRECTIONAL INST. 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. Court costs are assessed against plaintiff. 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: Richard Waterhouse, #443-466 P.O. Box 540 St. Clairsville, Ohio 43950 Gregory C. Trout, Chief Counsel Department of Rehabilitation Plaintiff, Pro se For Defendant and Correction 1050 Freeway Drive North Columbus, Ohio 43229 DRB/RDK/laa 8/18 Filed 9/2/04 Sent to S.C. reporter 9/27/04
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