Opinion
2020-00205AD
11-24-2020
CHRISTOPHER KASSAB Plaintiff v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION Defendant
Sent to S.C. Reporter 8/31/21
MEMORANDUM DECISION
FINDINGS OF FACT
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{¶1} Christopher Kassab ("plaintiff"), an inmate, filed a complaint against defendant, Ohio Department of Rehabilitation and Correction ("ODRC"). Plaintiff claims on July 12, 2018, in defendant's Madison Correctional Institution, a book that he ordered was destroyed after his signature was forged on a form stating that he requests that the book be destroyed. Plaintiff seeks damages in the amount of $10, 000.00, $31.95 for the cost of the book and $9, 968.05 for punitive damages. Plaintiff submitted the $25.00 filing fee.
{¶2} Defendant submitted an Investigation Report denying liability in this matter. Defendant asserts that plaintiff did not meet his burden of proof for his claim because he did not present any evidence that his signature was forged. Further, defendant states that punitive damages cannot be awarded against a state agency.
{¶3} Plaintiff responded to defendant's Investigation Report, reasserting his claim.
CONCLUSIONS OF LAW
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{¶4} In order to prevail in a claim for negligence, 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 damages. 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., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984).
{¶5} "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 (2nd Dist.), citing Miller v. Paulson, 97 Ohio App.3d 217, 221, 646 N.E.2d 521 (10th Dist. 1994); Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989).
{¶6} 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, 76-0356-AD (1979).
{¶7} This court in Mullett v. Department of Correction, 76-0292-AD (1976), 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.
{¶8} 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, 76-0368-AD (1977).
{¶9} Plaintiff must produce evidence which affords a reasonable basis for the conclusion that defendant's conduct is more likely a substantial factor in bringing about the harm. Parks v. Department of Rehabilitation and Correction, 85-01546-AD (1985).
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{¶10} In addition, prison regulations, including those contained in the Ohio Administrative Code, "are primarily designed to guide correctional officials in prison administration rather than to confer rights on inmates." State ex rel. Larkins v. Wilkinson, 79 Ohio St.3d 477, 479, 1997-Ohio-139, 683 N.E.2d 1139, citing Sandlin v. Conner 515 U.S. 472, 481-482, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Additionally, this court has held that "even if defendant had violated the Ohio Administrative Code, no cause of action would exist in this court. A breach of internal regulations in itself does not constitute negligence." Williams v. Ohio Dept. of Rehab. and Corr., 67 Ohio Misc.2d 1, 3, 643 N.E.2d 1182 (10th Dist. 1993). Accordingly, to the extent that plaintiff alleges that ODRC somehow violated internal prison regulations and the Ohio Administrative Code, he fails to state a claim for relief. See Sharp v. Dept of Rehab. & Corr., Ct. of Cl. No. 2008- 02410-AD, 2008-Ohio-7064, ¶ 5.
{¶11} In order to recover against a defendant in a tort action, plaintiff must produce evidence which furnishes a reasonable basis for sustaining his claim. If his evidence furnishes a basis for only a guess, among 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., 161 Ohio St. 82, 118 N.E.2d 147 (1954). Plaintiff has not provided evidence that his signature was forged.
{¶12} The credibility of witnesses and the weight attributable to their testimony are primarily matters for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), 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, 176 Ohio St. 61, 197 N.E.2d 548 (1964).
{¶13} A review of the plaintiffs signature on the following documents: civil complaint, March 24, 2020; Notice of Withholding of Printed Material dated May 25, 2018, concerning the book, The Parasite Doctor Suzune, amended complaint, June 24, 2020; Response
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to ODRC's Investigation Report; and Personal A/C Withdrawal Checkout Slips dated June 25, 2017, March 15, April 20, May 22, August 14, 2018 and June 2, 2019, reveals they are consistently the same. However, a review of the Notice of Withholding Printed Material concerning Young Exotic Beauties and the request to destroy this book, his signature is not consistent with plaintiffs signature or other documents submitted. Accordingly, this court finds plaintiffs assertion that his signature was forged on this document to be credible.
{¶14} Accordingly, plaintiff has established by a preponderance of the evidence, that plaintiffs book was lost or destroyed while in possession of ODRC.
{¶15} "When prison authorities obtain possession of an inmate's property, a bailment relationship arises between the correctional facility and the inmate. Buhrow v. Department of Rehabilitation and Correction, 85-01562-AD (1985); Sallows v. Department of Correction, 85-07773-AD (1986)."
{¶16} By virtue of this relationship, defendant must exercise ordinary care in handling and storing the property. Buhrow; Sallows. If property is lost or stolen while in defendant's possession, it is presumed, without evidence to the contrary, defendant failed to exercise ordinary care. Merrick v. Ohio Department of Rehabilitation and Correction, 85-05029-AD (1985); Cox v. Southern Ohio Training Center, 84-03740-AD (1986).
{¶17} Finally, plaintiff's claim for punitive damages is denied. It is well settled that punitive damages are not recoverable in the Court of Claims against a state agency. See Drain v. Kosydar, 54 Ohio St.2d 49, 374 N.E.2d, 253 (1978).
{¶18} Thus, plaintiff is awarded $31.95 for the book, plus $25.00 for the filing fee, which may be reimbursed as compensable damages pursuant to the holding in Bailey v. Ohio Department of Rehabilitation and Correction, 62 Ohio Misc.2d 19, 587 N.E.2d 990 (Ct. of Cl. 1990).
ENTRY OF ADMINISTRATIVE DETERMINATION
{¶19} 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 plaintiff in the amount of $56.95, which includes reimbursement of the $25.00 filing fee. Court costs are assessed against defendant.