Waver v. Ohio Dept. of Corr.

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[Cite as Waver v. Ohio Dept. of Corr., 2006-Ohio-7250.] IN THE COURT OF CLAIMS OF OHIO JAMES L. WAVER : Plaintiff : v. : CASE NO. 2006-02960-AD OHIO DEPARTMENT OF CORRECTIONS : Defendant MEMORANDUM DECISION : : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} 1) Plaintiff, James L. Waver, an inmate incarcerated at defendant s Mansfield Correctional Institution ( ManCI ), reported several items of personal property were stolen from his cell on or about February 21, 2004. A black radio/cassette player serial number 0755622, RX-FS470 was among the reported stolen property items. ManCI employees conducted a prompt, but fruitless search after the property was reported stolen. {¶ 2} 2) On October 26, 2005, a dismantled radio/cassette player was confiscated from an inmate by an ManCI employee. radio/cassette player was The confiscated dismantled subsequently destroyed. Plaintiff asserted this confiscated item was his radio/cassette player which he had reported stolen on February 21, 2004. {¶ 3} 3) Plaintiff have been returned to maintained him the rather dismantled than device destroyed. should Plaintiff contended defendant should bear liability for the replacement value of the radio/cassette player since ManCI staff destroyed the device without any authorization. The radio/cassette player Case No. 2006-02960-AD -2- MEMORANDUM DECISION was originally purchased by plaintiff s sister for $69.99 in June, 1999. Plaintiff filed this complaint seeking to recover $81.00 for the replacement cost of the radio/cassette player, plus $419.00 for emotional distress. Plaintiff submitted a copy of a title for a Panasonic radio/cassette player, serial number 0755622, model number RX-FS470. {¶ 4} 4) Defendant denied The filing fee was waived. any liability and suggested the Panasonic radio/cassette player was contraband property because there is no evidence in plaintiff s file to prove he obtained the device through approved means. Defendant noted plaintiff came to ManCI on March 20, 2000, and brought a Sony radio with him not a Panasonic radio/cassette player. Past property inventories compiled on three separate occasions in 2002, show plaintiff possessed a Sony radio. listed. plaintiff player. No Panasonic brand device is Another inventory compiled on December 9, 2004, lists possessing a Sony radio and a Panasonic cassette Plaintiff reported his Panasonic radio/cassette player was stolen on February 21, 2004. {¶ 5} 5) Plaintiff responded to defendant s investigation report by insisting he was the rightful owner of the dismantled radio/cassette player that defendant confiscated and destroyed. CONCLUSIONS OF LAW {¶ 6} 1) This court does not recognize any entitlement to damages for mental distress and extraordinary damages for simple negligence involving property loss. Rehabilitation and Correction Galloway v. Department of (1979), 78-0731-AD; Berke v. Ohio Dept. of Pub. Welfare (1976), 52 Ohio App. 2d 271. Plaintiff s Case No. 2006-02960-AD -2- MEMORANDUM DECISION claim for emotional distress is denied. {¶ 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) 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. {¶ 9} 4) 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. {¶ 10} 5) 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 Case No. 2006-02960-AD -2- MEMORANDUM DECISION Department of Rehabilitation and Correction, 2005-05183-AD; jud, 2005-Ohio-4320; Griffin v. Ohio Department of Corrections (2006), 2005-08271-AD. {¶ 11} 6) An inmate plaintiff is barred from pursuing a claim for the loss of restricted property when such property is declared impermissible pursuant to departmental policy. v. Dept of Rehab. and Corr. (2001), 2000-09849-AD. Zerla Plaintiff s claim for his altered radio/cassette player is denied. Case No. 2006-02960-AD -2- MEMORANDUM DECISION IN THE COURT OF CLAIMS OF OHIO JAMES L. WAVER : Plaintiff : v. : CASE NO. 2006-02960-AD OHIO DEPARTMENT OF CORRECTIONS : Defendant ENTRY OF ADMINISTRATIVE DETERMINATION : : : : : : : : : : : : : : : : : : 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: James L. Waver, #340-516 P.O. Box 8000 501 Thompson Road Conneaut, Ohio 44030 Plaintiff, Pro se Gregory C. Trout, Chief Counsel Department of Rehabilitation and Correction For Defendant Case No. 2006-02960-AD 1050 Freeway Drive North Columbus, Ohio 43229 RDK/laa 8/1 Filed 8/17/06 Sent to S.C. reporter 4/5/07 -2- MEMORANDUM DECISION

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