Conway v. Ohio State Penitentiary

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[Cite as Conway v. Ohio State Penitentiary, 2009-Ohio-2414.] Court of Claims of Ohio The Ohio Judicial Center 65 South Front Street, Third Floor Columbus, OH 43215 614.387.9800 or 1.800.824.8263 www.cco.state.oh.us JAMES CONWAY Plaintiff v. OHIO STATE PENITENTIARY Defendant Case No. 2008-07161-AD Deputy Clerk Daniel R. Borchert MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) Plaintiff, James Conway, an inmate incarcerated at defendant, Ohio State Penitentiary ( OSP ), stated he delivered a laundry bag containing three t-shirts to OSP staff on October 22, 2006. Plaintiff related [o]n Wednesday 10/25/06, the laundry bag was returned to (plaintiff) empty. Plaintiff explained a search was conducted for his three t-shirts, but the property was never recovered. {¶ 2} 2) Plaintiff asserted his clothing was lost as a proximate cause of negligence on the part of defendant in handling inmate laundry. Plaintiff filed this complaint seeking to recover damages in the amount of $11.47, the replacement cost of three t-shirts. Plaintiff submitted the $25.00 filing fee and requested reimbursement of that cost along with his damage claim. {¶ 3} 3) Defendant denied any liability in this matter based on the contention that plaintiff failed to offer sufficient evidence to establish he delivered three t-shirts to the OSP laundry department on or about October 22, 2006. Defendant claimed [p]laintiff was given five new t-shirts free of charge to replace those he alleges were missing. {¶ 4} 4) Plaintiff filed a response pointing out defendant has access to surveillance camera footage that would prove he delivered a full laundry bag to OSP staff on or about October 22, 2006. Plaintiff maintained defendant is in possession of a theft/loss report filed in connection with him reporting his laundry missing in October 2006. Plaintiff insisted he has produced evidence to prove he delivered three t-shirts to defendant on October 22, 2006 and those clothing items were subsequently lost or stolen while under defendant s control. CONCLUSIONS OF LAW {¶ 5} 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. {¶ 6} 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. {¶ 7} 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. {¶ 8} 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. {¶ 9} 5) In order to prevail, plaintiff must prove, by a preponderance of the evidence, that defendant owed him a duty, that defendant breached that duty, and that defendant s breach proximately caused his injuries. Armstrong v. Best Buy Company, Inc. 99 Ohio St. 3d 79, 2003-Ohio-2573, 788 N.E. 2d 1088, ¶8 citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707. {¶ 10} 6) Whether a duty is breached and whether the breach proximately caused an injury are normally questions of fact, to be decided by . . . the court . . . Pacher v. Invisible Fence of Dayton, 154 Ohio App. 3d 744, 2003-Ohio-5333, 798 N.E. 2d 1121, ¶41, citing Miller v. Paulson (1994), 97 Ohio App. 3d 217, 221, 646 N.E. 2d 521; Mussivand v. David (1989), 45 Ohio St. 3d 314, 318, 544 N.E. 2d 265. {¶ 11} 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, 39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is free to believe or disbelieve, all or any part of each witness s testimony. State v. Antill (1964), 176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. {¶ 12} 8) Plaintiff s failure to prove delivery of t-shirts 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), 86-02821AD. {¶ 13} 9) Plaintiff has failed to prove, by a preponderance of the evidence, he sustained any loss as a result of any negligence on the part of defendant. Fitzgerald v. Department of Rehabilitation and Correction (1998), 97-10146-AD. {¶ 14} 10) Plaintiff has failed to show any causal connection between any property loss and any breach of a duty owed by defendant in regard to protecting inmate property. Druckenmiller v. Mansfield Correctional Inst. (1998), 97-11819-AD. Court of Claims of Ohio The Ohio Judicial Center 65 South Front Street, Third Floor Columbus, OH 43215 614.387.9800 or 1.800.824.8263 www.cco.state.oh.us JAMES CONWAY Plaintiff v. OHIO STATE PENITENTIARY Defendant Case No. 2008-07161-AD Deputy Clerk Daniel R. Borchert ENTRY OF ADMINISTRATIVE DETERMINATION 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 defendant. Court costs are assessed against plaintiff. ________________________________ DANIEL R. BORCHERT Deputy Clerk Entry cc: James Conway, #A457-203 878 Coitsville-Hubbard Road Youngstown, Ohio 44505 RDK/laa 1/26 Filed 2/12/09 Sent to S.C. reporter 5/21/09 Gregory C. Trout, Chief Counsel Department of Rehabilitation and Correction 770 West Broad Street Columbus, Ohio 43222

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