Kemp v. Ohio State Penitentiary

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[Cite as Kemp v. Ohio State Penitentiary, 2006-Ohio-7247.] IN THE COURT OF CLAIMS OF OHIO CHARLES KEMP : Plaintiff : v. : CASE NO. 2006-02587-AD OHIO STATE PENITENTIARY : MEMORANDUM DECISION Defendant : : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} 1) On February 2, 2006, plaintiff, Charles Kemp, an inmate incarcerated ( OSP ), was Facility ( SOCF ). at defendant, transferred to the Plaintiff s Ohio State Southern personal Penitentiary Ohio Correctional property which had apparently been under the custody and control of OSP staff since December 5, 2005, was transferred with plaintiff to SOCF on February 15, 2006. {¶ 2} 2) Plaintiff originally asserted his personal color television set, headphones, 974 photographs, pair of shoes, pair of earbuds, and four compact discs were lost or stolen while under the care of OSP personnel. Plaintiff filed this complaint seeking to recover $228.65, the estimated replacement value of his alleged missing property. The filing fee was paid. {¶ 3} 3) Plaintiff submitted a copy of his property inventory dated February 2, 2006, compiled at OSP. The inventory lists a state television set, four compact discs, pictures, and sport shoes. A personal television set and earbuds are not listed. Under contraband, the listing includes 350 pictures over limit and 1 altered headphones. {¶ 4} 4) Plaintiff subsequently requested his claims for the shoes and earbuds be removed since he received reimbursement for the cost of these items. {¶ 5} 5) Defendant confiscated from authorization. destroyed. acknowledged plaintiff Altered and 350 photographs destroyed headphones without were confiscated also proper and Defendant asserted four compact discs were returned to plaintiff s possession upon his arrival at SOCF. seemingly were admitted destroyed. plaintiff s Defendant television maintained set plaintiff s was Defendant lost or for the damages loss of his 350 photographs and television set should be limited to $300.00. additional Defendant photographs, denied and liability altered for compact headphones. discs, Defendant pointed out the issue concerning the loss of shoes and earbuds has been resolved. {¶ 6} 6) Plaintiff responded in his response to defendant s investigation report by asserting all his photographs claimed (974) are missing. Plaintiff insisted he should receive $1,948.00 alone for the loss of all 974 photographs claimed. Plaintiff also appears to be reasserting his claim for his television set and headphones. {¶ 7} 7) Plaintiff s complaint was amended on July 6, 2006, setting his damage claim at $2,185.25, and formally removing the claims for shoes and earbuds. 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) An inmate plaintiff may recover the value of confiscated property destroyed by agents of defendant when those agents acted without property destruction. authority or right to carry out the Berg v. Belmont Correctional Institution (1998), 97-09261-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), 8501546-AD. property However, plaintiff has no right to pursue a claim for in which he cannot prove any rightful ownership. DeLong v. Department of Rehabilitation and Correction (1988), 88-06000-AD. contraband Defendant cannot be held liable for the loss of property that plaintiff has no right to possess. Radford v. Department of Rehabilitation and Correction (1985), 84-09071. An inmate maintains no right of ownership in property which is impermissibly altered and therefore, has no right to recovery when the altered property is destroyed. Watley v. Ohio Department of Rehabilitation and Correction, 2005-05183-AD; jud, 2005-Ohio-4320; Griffin v. Ohio Department of Corrections (2006), 2005-08271-AD. {¶ 12} 6) An inmate plaintiff is barred from pursuing a claim for the loss of use of restricted property when such property is declared impermissible pursuant to departmental policy. AD. Zerla v. Dept. of Rehab. and Corr. (2001), 2000-09849- Plaintiff s claim for his altered headphones is denied. {¶ 13} shown in 7) Negligence respect photographs. to the Baisden v. on the loss part of Southern a of defendant television Ohio has set Correctional and been 350 Facility (1977), 76-0617-AD. {¶ 14} 8) preponderance Plaintiff of the has failed evidence, to additional prove, by photographs a and compact discs were improperly seized or destroyed as a proximate result of Fitzgerald any negligent v. Department conduct of attributable Rehabilitation to defendant. and Correction (1998), 97-10146-AD. {¶ 15} 9) As trier of fact, this court has the power to award reasonable damages based on evidence presented. Sims v. Southern Ohio Correctional Facility (1988), 61 Ohio Misc. 2d 239. {¶ 16} 10) Damage assessment function of the trier of fact. Ohio App. 3d 42. is a matter within the Litchfield v. Morris (1985), 25 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. {¶ 17} 11) The standard measure of damages for personal property loss is market value. McDonald v. Ohio State Univ. Veterinary Hosp. (1994), 67 Ohio Misc. 2d 40. {¶ 18} personal 12) In a situation where a damage assessment for property destruction based on market value is essentially indeterminable, a damage determination may be based on the standard determination value considers of the such property factors as to the value owner. to the This owner, original cost, replacement cost, salvage value, and fair market value at the time of the loss. Cooper v. Feeney (1986), 34 Ohio App. 3d 282. {¶ 19} 13) Plaintiff has suffered damages in the amount of $500.00, plus the $25.00 filing fee, which may be reimbursed as compensable damages pursuant to the holding in Bailey v. Ohio Department of Misc. 2d 19. Rehabilitation and Correction (1990), 62 Ohio IN THE COURT OF CLAIMS OF OHIO CHARLES KEMP : Plaintiff : v. : CASE NO. 2006-02587-AD OHIO STATE PENITENTIARY : ENTRY OF ADMINISTRATIVE DETERMINATION Defendant : : : : : : : : : : : : : : : : : : Having considered all the evidence in the claim file and, for the reasons concurrently set forth herewith, in the judgment is memorandum rendered decision in filed favor of plaintiff in the amount of $525.00, 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: Charles Kemp, #255-618 P.O. Box 45699 Lucasville, Ohio 45699 Plaintiff, Pro se Gregory C. Trout, Chief Counsel For Defendant Department of Rehabilitation and Correction 1050 Freeway Drive North Columbus, Ohio 43229 RDK/laa 7/27 Filed 8/17/06 Sent to S.C. reporter 4/5/07

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