Sampson v. Ohio State Penitentiary

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[Cite as Sampson v. Ohio State Penitentiary, 2004-Ohio-6149.] IN THE COURT OF CLAIMS OF OHIO BRIAN SAMPSON : Plaintiff : v. : CASE NO. 2004-06194-AD : MEMORANDUM DECISION OHIO STATE PENITENTIARY Defendant : ::::::::::::::::: FINDINGS OF FACT {¶ 1} 1) On or about November 19, 2003, plaintiff, Brian Sampson, an inmate incarcerated at defendant, Ohio State Penitentiary (OSP), was transferred to a segregation unit. {¶ 2} 2) Incident to this transfer, plaintiff s personal property was packed and stored in the OSP property vault. Plaintiff received his personal property when he was released from segregation. {¶ 3} 3) Plaintiff related that after he regained possession of his property he plugged in his television set and discovered it would not work. Plaintiff contended his television was damaged while under the custody and care of OSP staff. {¶ 4} 4) Furthermore, plaintiff maintained his beard trimmers were thrown away by OSP personnel during the time he was in segregation. {¶ 5} 5) Consequently, plaintiff filed this complaint seeking to recover $158.00 the total replacement cost of his television set, plus $20.25 the stated value of the beard trimmers, and $25.00 for filing fee reimbursement. Plaintiff also sought recovery of copying and postage costs. These costs are not recognizable damage elements, are disallowed, and shall not be addressed further. Plaintiff s damage claim amounts to $203.25. Plaintiff paid the requisite material $25.00 filing fee. {¶ 6} 6) Defendant admitted liability for the loss of plaintiff s beard trimmers. However, defendant asserted plaintiff has failed to prove his television set was damaged as a result of any negligent act or omission on the part of OSP personnel. Defendant denied plaintiff s television set was damaged while under the control of OSP employees. {¶ 7} 7) On September 27, 2004, plaintiff filed a response to defendant s investigation report. Plaintiff suggested his television set was broken by an OSP employee as an intentional act of retaliation. Plaintiff s television set was verified as broken on December 3, 2003. Plaintiff did not establish the set was broken as a proximate cause of negligence on the part of defendant. CONCLUSIONS OF LAW {¶ 8} 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. {¶ 9} 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. {¶ 10} 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. {¶ 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), 85-01546-AD. {¶ 12} 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. {¶ 13} 6) Plaintiff has failed to prove a causal connection between the damage to his television set and any breach of a duty owed by defendant in regard to protecting inmate property. Druckenmiller v. Mansfield Correctional Inst. (1998), 97-11819-AD. {¶ 14} 7) The Supreme Court of Ohio has established that an employer is liable for the tortious conduct of its employee only if the conduct is committed within the scope of employment and if the tort is intentional, the conduct giving rise to the tort must facilitate or promote the business of which the employee was engaged. Byrd v. Faber (1991), 57 Ohio St. 3d 56, citing Little Miami RR. Co. v. Wetmore (1869), 19 Ohio St. 110, and Taylor v. Doctors Hosp. (1985), 21 Ohio App. 3d 154. {¶ 2} Further, an intentional and willful tort committed by an employee for his own purposes constitutes a departure from the employment, so that the employer is not responsible. Szydlowski v. Ohio Dept. of Rehab. & Corr. (1992), 79 Ohio App. 3d 303, citing Vrabel v. Acri (1952), 156 Ohio St. 467. The facts of this case, if taken as true, would constitute an intentional tort committed by defendant s employee performed for his own personal purposes. {¶ 3} Thus, following the rationale of Szydlowski, supra, plaintiff would not have a cause of action against defendant for intentional damage done to his television set. {¶ 4} 8) To the extent that plaintiff alleges claims based upon retaliation, action against the state under Section 1983, Title 42, U.S. Code may not be brought in the Court of Claims because the state is not a person within the meaning of Section 1983. See, e.g., Jett v. Dallas Indep. School Dist. (1989), 491 U.S. 701; Burkey v. Southern Ohio Correctional Facility (1988), 38 Ohio App. 3d 170; White v. Chillicothe Correctional Institution (Dec. 29, 1992), Franklin App. No. 92-AP-1229. Indeed, claims of retaliation are to be treated as an action for alleged violations of constitutional rights under Section 1983, Title 42, U.S. Code. Thus, this court is without jurisdiction to hear those claims. {¶ 5} 9) Plaintiff has proven, by a preponderance of the evidence, negligence by defendant, in respect to the loss of his beard trimmers. Baisden v. Southern Ohio Correctional Facility (1977), 76-0617-AD; Stewart v. Ohio National Guard (1979), 78-0342-AD. {¶ 6} 10) Plaintiff has suffered damages in the amount of $20.25, 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 BRIAN SAMPSON : Plaintiff : v. : CASE NO. 2004-06194-AD : ENTRY OF ADMINISTRATIVE DETERMINATION OHIO STATE PENITENTIARY 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 $40.25, 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: Brian Sampson, #389-452 878 Coitsville-Hubbard Road Youngstown, Ohio 44505 Gregory C. Trout, Chief Counsel Department of Rehabilitation and Correction 1050 Freeway Drive North Columbus, Ohio 43229 RDK/laa 10/6 Filed 10/22/04 Sent to S.C. reporter 11/17/04 Plaintiff, Pro se For Defendant

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