Silverman v. Ohio Dept. of Rehab. & Corr.
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[Cite as Silverman v. Ohio Dept. of Rehab. & Corr., 2006-Ohio-7244.] IN THE COURT OF CLAIMS OF OHIO PERRY R. SILVERMAN : Plaintiff : v. : CASE NO. 2006-01157-AD OHIO DEPARTMENT OF REHABILITATION AND CORRECTION : MEMORANDUM DECISION : Defendant : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} On September 2, 2005, plaintiff, Perry R. Silverman, an inmate incarcerated at defendant s Correctional Reception Center ( CRC ), was transferred Institution ( PCI ). to defendant s Pickaway Correctional Plaintiff pointed out that on the morning of his transfer he was instructed by CRC employees to pack his personal property items into a net mesh bag. he packed all his property including a pair Plaintiff related of prescription eyeglasses into the provided bag and was escorted to the CRC dining hall for breakfast. Plaintiff further related that before he was seated for breakfast he was instructed to leave the bag containing his property on the floor and against the wall of the CRC dining hall. After eating breakfast, plaintiff retrieved the bag containing his property and was escorted into another building on CRC grounds. Plaintiff asserted he was then ordered to empty the bag containing his property and transfer the contents into a plastic bag. he emptied his property eyeglasses were missing. bag Plaintiff recalled that when he observed his prescription Plaintiff maintained he immediately reported the fact his eyeglasses were missing to CRC personnel, but nothing was done. Plaintiff noted he was ordered to board the PCI transfer regarding bus his to missing without receiving eyeglasses. any Plaintiff resolution asserted the eyeglasses have never been recovered and he has consequently filed this complaint seeking to recover $507.06, the replacement cost of a pair of eyeglasses. Plaintiff contended his eyeglasses were lost as a proximate cause of negligence on the part of CRC staff in failing to protect his personal property. The filing fee was waived. {¶ 2} Defendant Defendant lost stated, were not plaintiff s denied [t]he packed September any liability eyeglasses up 2, and 2005, in plaintiff this claims inventoried, transfer from matter. to have incident CRC to to PCI. Defendant denied plaintiff reported any missing items when his property plaintiff was packed possessed and inventoried. reading glasses arrived at CRC on August 3, 2005. Defendant and acknowledged sunglasses when Defendant submitted a copy of plaintiff s property inventory dated September 2, 2005. Neither sunglasses nor reading glasses are listed on the inventory. inventory bears plaintiff s signature listing as complete and accurate. he certifying the The property Defendant denied plaintiff made any report concerning missing eyeglasses to CRC staff on September 2, 2005. Defendant denied any CRC employees breached any duty of care owed to plaintiff in respect to the protection of his property. {¶ 3} Plaintiff responded to defendant s investigation report by insisting his eyeglasses, were lost or stolen while in the custody or control of CRC staff. Plaintiff asserted his eyeglasses were lost or stolen before the remainder of property was inventoried on September 2, 2005. Plaintiff recalled he did report the loss of his eyeglasses to CRC personnel, but they responded that nothing could be done. Plaintiff contended he did indeed pack his eyeglasses on the morning of September 2, 2005 and the glasses were subsequently lost or stolen while his property was under the custody of CRC employees when he was at breakfast. CONCLUSIONS OF LAW {¶ 4} 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. {¶ 5} 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. {¶ 6} 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. {¶ 7} 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. {¶ 8} 5) In order to recover against a defendant in a tort action, plaintiff reasonable basis furnishes a must for produce evidence sustaining basis for which furnishes his claim. If a guess, among only his a evidence 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. {¶ 9} 6) Plaintiff s failure to prove delivery of eyeglasses to defendant constitutes a failure to show imposition of a legal bailment property. duty on the part of defendant in respect to lost Prunty v. Department of Rehabilitation and Correction (1987), 86-02821-AD. {¶ 10} 7) 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. v. Antill (1964), 176 Ohio St. 61. State The court does not find plaintiff s assertions particularly persuasive. {¶ 11} 8) preponderance discarded or Plaintiff of the stolen as has evidence, a failed any proximate conduct attributable to defendant. to prove, eyeglasses result of by were any a lost, negligent Fitzgerald v. Department of Rehabilitation and Correction (1998), 97-10146-AD. IN THE COURT OF CLAIMS OF OHIO PERRY R. SILVERMAN : Plaintiff : v. : CASE NO. 2006-01157-AD OHIO DEPARTMENT OF REHABILITATION AND CORRECTION : ENTRY OF ADMINISTRATIVE DETERMINATION : Defendant : : : : : : : : : : : : : : : : : Having considered all the evidence in the claim file and, for the reasons concurrently defendant. set forth herewith, in the judgment is memorandum rendered decision in filed 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: Perry R. Silverman, #499-197 P.O. Box 209 Orient, Ohio 43146 Plaintiff, Pro se Gregory C. Trout, Chief Counsel Department of Rehabilitation and Correction 1050 Freeway Drive North Columbus, Ohio 43229 For Defendant RDK/laa 7/31 Filed 8/17/06 Sent to S.C. reporter 4/5/07
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