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

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[Cite as Tillman v. Ohio Dept. of Rehab. & Corr., 2006-Ohio-7193.] IN THE COURT OF CLAIMS OF OHIO STANLEY TILLMAN : Plaintiff : v. : CASE NO. 2005-11132-AD OHIO DEPARTMENT OF : MEMORANDUM DECISION REHABILITATION AND CORRECTIONS : Defendant : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} 1) On October 11, 2005, plaintiff, Stanley Tillman, an inmate incarcerated at defendant s Lorain Correctional Institution ( LorCI ), was transferred from LorCI to defendant s North Central Correctional Institution ( NCCI ). {¶ 2} 2) Plaintiff recalled on the day of his transfer he boarded a transport bus and observed his personal property and legal materials, which were packed in three boxes, being loaded aboard a transport transported ( CMC ) from where he bus. Plaintiff LorCI to waited the for explained Correctional approximately he was Medical five then Center hours before being driven to NCCI. {¶ 3} 3) Plaintiff stated he regained personal property after arriving at NCCI. possession of his However, according to plaintiff, he received two boxes of property items instead of three that Plaintiff were loaded pointed out upon the the transport missing third bus box at of LorCI. property contained two court transcripts, three law books, miscellaneous materials, and envelopes. Plaintiff has asserted the box containing his legal material never arrived at NCCI and he has consequently filed this complaint seeking to recover $1,032.58, the estimated replacement cost of the missing material. When plaintiff originally complained about his missing legal material he valued the property at $450.00 and described the property as legal work, transcripts of my case, 25 envelopes, notebooks, pens, and other assorted materials. {¶ 4} 4) Defendant property were related transferred plaintiff from the Lake and his Erie Correctional Institution ( LaECI ) to LorCI on September 28, 2005. to this Plaintiff transfer, signed acknowledging accounting of plaintiff s the the his September inventory property 28, was property. No 2005, a was books, Incident inventoried. property complete personal and inventory accurate envelopes, legal transcripts, or miscellaneous legal materials are specifically listed on this inventory, although a generic category, papers is marked. Another inventory of plaintiff s property was compiled on October 11, 2005, in connection with his transfer from LorCI to NCCI. No books, envelopes, legal transcripts, or miscellaneous legal materials are specifically listed on this inventory, although the items papers is marked. Plaintiff signed this inventory acknowledging it represented a complete and accurate listing of his property. Defendant denied ever exercising control over the property plaintiff alleged was lost or stolen during the transfer procedure. Defendant suggested all of plaintiff s property that was scheduled for transfer from LorCI to NCCI was contained in two boxes, not three as plaintiff has asserted. {¶ 5} 5) On February 27, 2006, plaintiff filed a response to defendant s investigation report. Plaintiff insisted his property scheduled for transfer was contained in three boxes and one of those boxes was lost en-route from LorCI to NCCI. Plaintiff did file a theft/loss report regarding lost property when he arrived at NCCI. work, papers, Plaintiff claimed, envelopes, legal notebooks, transcripts statements, evidence for appeals & lawsuit, valued at about $450.00 were not transferred on defendant s transport bus. The transporting officers verified a box containing the alleged missing property was not on the transport bus. Plaintiff contended this verification constitutes proof a box containing the alleged missing property actually existed and was misplaced by defendant s employees. The trier of fact disagrees. Plaintiff asserted defendant s employee (in clearly acknowledged the October 11, 2005, theft/loss report) the existence of a third box containing his property that theft/loss was report missing notes or lost. defendant s The October employees 11, 2005, acknowledged a third box of plaintiff s property was not on the transport bus when it arrived at NCCI. admission a third box This notation does not represent an existed, but an acknowledgment third box could not be found on the transport bus. 2006, plaintiff filed a request to amend affidavit of fellow inmate James Mason. his that a On June 9, claim with an Mason asserts while he was not with plaintiff when plaintiff s boxes were initially loaded on the bus, he was with him when the boxes were unloaded. He claims one of plaintiff s boxes was missing. However, since he was not present at the time of the initial loading, his knowledge of the number of boxes plaintiff possessed is based solely on plaintiff s statements. possessed physical evidence contained in boxes, three Plaintiff establishing defendant his packed claimed property three property, and subsequently lost one of those boxes. he was boxes of Plaintiff did not submit any physical evidence establishing the existence of three boxes of property packed and marked by defendant. CONCLUSIONS OF LAW {¶ 6} 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. {¶ 7} 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. {¶ 8} 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. {¶ 9} 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. {¶ 10} 5) Plaintiff s failure to prove delivery of certain items of 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. {¶ 11} 6) Plaintiff has failed to prove, by a preponderance of the evidence, he suffered any loss as a result of a negligent act or omission on the part of defendant. v. Department 03135-AD. of Rehabilitation and Correction (2001), Merkle 2001- IN THE COURT OF CLAIMS OF OHIO STANLEY TILLMAN : Plaintiff : v. : CASE NO. 2005-11132-AD OHIO DEPARTMENT REHABILITATION : ENTRY OF ADMINISTRATIVE AND CORRECTIONS DETERMINATION : Defendant : : : : : : : : : : : : : : : : : Plaintiff s motion to submit additional evidence is GRANTED. Having considered all the evidence in the claim file and, for the reasons set forth in the memorandum decision filed concurrently defendant. herewith, judgment is rendered in favor Court costs are assessed against plaintiff. of 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: Stanley Tillman, #421-940 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 RDK/laa 4/25 Filed 6/20/06 Sent to S.C. reporter 3/16/07

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