Opinion
2020-00265AD
08-27-2020
JAMES MORROW Plaintiff v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION Defendant
Sent to S.C. Reporter 10/21/21
MEMORANDUM DECISION
FINDINGS OF FACT
{¶1} James Morrow ("plaintiff"), an inmate, filed a complaint against defendant, Ohio Department of Rehabilitation and Correction ("ODRC"). Plaintiff related on December 23, 2019, he was placed into restrictive housing in the mental health unit because he feared his cellmate was going to attack him. Plaintiff contends defendant was negligent in the pack up of his property. Plaintiff states that because of the amount of time it took defendant to pack up his property, his cellmate kept or destroyed his property including: a ClearTunes 15" TV and remote, a JP5 tablet, an 8" fan, skull candy earbuds, 2 pairs of sweatpants, 2 sweatshirts, 4 long sleeved shirts, a fleece blanket, 6 pairs of socks, 6 pairs of boxer shorts, 1 pair of green shorts, 48 colored pencils, a crockpot, toe nail clippers, and a coaxial cord. Plaintiff seeks damages in the amount of $629.62. Plaintiff submitted the $25.00 filing fee.
{¶2} Defendant submitted an Investigation Report denying liability in this matter. Defendant states four reasons why it denies liability. First, defendant states that plaintiff admitted in his complaint that some property in his possession was purchased for his cellmate and thus, that property is contraband to which plaintiff does not have a right to possess. Second, defendant contends that because plaintiffs property was damaged or stolen before defendant could conduct a pack up that the bailment relationship was never formed and thus defendant is not liable for the lost property. Third, defendant asserts that because plaintiff had the opportunity to lock up his possessions and failed to do so defendant met the duty of ordinary care it had in regard to plaintiffs possessions. Finally, defendant states that violations of prison regulations do not confer rights on inmates.
{¶3} Plaintiff submitted a copy of an Inmate Property Theft/Loss Report dated February 12, 2020, wherein he states the property which he claims his cellmate stole is listed on this form. The chief security officer who conducted the search for plaintiff's property revealed that Correctional Officer ("CO") Miglets conducted the pack up of plaintiffs property on December 23, 2019. Furthermore, the security officer stated the only property plaintiff had was a washcloth, T-shirt, and underwear.
{¶4} Plaintiff submitted a communication with Donna Crawford, an employee of ODRC, dated February 18, 2020, which in pertinent part stated:
"In review of this case, it is determined that there is no merit to your allegation. Officer DeFrank packed up your property and not your celly Gilbert. Officer DeFrank stated there was no Sweatshirt or Pants in your cell at the time of your pack-up. Officer Derfrank also states that your cord was wrapped around your television set. The items that were in your cell identified as belonging to you by officer Defrank were packed up at the time you went to TPU. According to Capt. Hill, you were not permitted to pack up your own items for your safety. The policy to let inmates pack up their own property does not supersede the safety and security of inmates, staff, or the institution."
{¶5} However, on May 13, 2020, Donna Crawford, TCI Inspector, authored a document entitled Investigation Report which stated in pertinent part:
"I also interviewed the Officer who packed up the property of inmate Morrow, Officer Miglets. According to Officer Miglets he secured the cell door of Offender Morrow and Gilbert as soon as he was notified that
Morrow was refusing to lock and would not be returning to the block. Miglets states he did lock Gilbert Inside until he returned to do the pack-up because inmate Gilbert resided in the cell, and it was approaching count time. According to officer Miglets there was not much property at all in the cell when he went to pack up Morrow's property. Officer Miglets states that the JP5 Player that Morrow claimed Gilbert damaged was in the cell and the screen was cracked so he wrote the JP5 Player up as contraband and sent it to shift."
"On December 23, 2019 inmate Morrow left his housing Unit in 12 West to go to Mental Health to tell the Mental Health Liaison that he was in fear for his life. Morrow spoke to the Liaison and told him that he found a note in his cell stating that he would be 'whacked' by the Aryan Brotherhood. Morrow then told the mental health officer that he was refusing to go back to 12West because he feared for his life, the officer called the Shift Captain and he was told to have inmate Morrow escorted to TCI TPU (Segregation Unit). Inmate Morrow was charged with a Rule (23) and placed in Security Control pending a Rules Infraction Board Hearing. According to Morrow, he was not permitted to go back to the Unit to pack up his own property. Due to the serious nature of the complaint that he was in fear tor his life, Morrow was not permitted to go back and pack up his own property. . . There was no reason for the door to be secured when Morrow left the block because inmate Gilbert remained in the block when Morrow left to go to Mental Health. TCI staff assigned to Morrow's unit 12W had no knowledge of inmate Morrow's intent to refuse to return to his cell because he chose to notify Mental Health and not Unit Staff. TCI 12West staff also did not have knowledge at the time of Morrow's refusal
that there were any problems between he and his cellmate inmate Gilbert."
{¶6} Plaintiff submitted a copy of an Inmate Property Record dated November 9, 2019, which lists the following property items among other things: ClearTunes television and remote, art supplies, JP5 tablet, a blanket, seven pairs of socks, one sweatshirt, one sweatpants, and seven pairs of underwear. Not listed on this Property Record were green shorts, crockpot, toenail clippers, a fan, or coaxial cable. While plaintiff submitted a sales order dated October 3, 2019 from Walkenhorst's, a prison authorized vender, which lists the purchase of green shorts, toenail clippers, Skull Candy earbuds, video cable, four long sleeve T-shirts, these items do not appear on the Inmate Property Record of November 4, 2019. Plaintiff signed the following statement on November 12, 2019: "All personal property that is listed on this inventory form has been returned to me and I was offered the opportunity to inspect it before leaving the vault. I understand that once I leave the vault with my belongings, I can no longer file a complaint concerning any missing or damaged property."
{¶7} ODRC submitted a copy of the Inmate Property Record dated December 23, 2019 for a pack-up which occurred at 10:30 a.m. The property record was signed by CO Miglets and plaintiffs cellmate. The property record reveals the only property listed was two bars of soap, a soap dish, toothbrush, two tubes of toothpaste, and a photo album. It was also noted that the JP5 was broken and considered contraband. No other items including state issued clothing were listed.
{¶8} Plaintiff also submitted an Incident Report dated February 21, 2020, concerning the incident of December 23, 2019, which in pertinent part stated:
"I shook down inmate Gilbert's cell on 2-5-20. There was very little property at all, and no property that belonged to Inmate Morrow except maybe a JP5 tablet found this is broken in two and cannot be turned on for
verification. A search of R&D did not produce any property or paperwork that belonged to Inmate Morrow. There is no DRC2055 to prove that any property was packed up at all. I printed out a DRC2055 from 11-4-19 that proves some of the items he states were stolen were in his packup at that time. Box receipt with clothing is attached. CO Miglets who was the officer in 12 West that day stated that Inmate Gilbert only had 1 washcloth, 1 tshirt, and 1 pair of underwear and those were placed in his TPU packup. He states that the whole cell was pretty much empty and that Inmate Gilbert (Morrow's cellie) didn't look like he had very much property at all."
{¶9} The Incident Report was signed by Staff Member Christie L. Haynie.
{¶10} Accordingly, plaintiff asserts judgment should be granted in his favor.
{¶11} On July 1, 2020, plaintiff filed a Motion for Default Judgment for failure to timely file the Investigation Report.
CONCLUSIONS OF LAW
{¶12} By operation of Executive Order 2020-01D and the Supreme Court's tolling order, ODRC has been afforded additional time to file the Investigation Report and respond to plaintiffs Motion for Default Judgment since the directives relating to time requirements are effectively frozen as of March 9, 2020. Therefore, the court finds that plaintiffs Motion for Default Judgment is essentially moot. The court further finds that the situation underlying plaintiffs request is not a situation that requires immediate attention. See Section (G) of In re Tolling of Time Requirements Imposed by Rules Promulgated by the Supreme Court and Use of Technology (permitting a local court to still require filing in accordance with existing rules and issue orders setting a specific schedule in a case or requiring parties to file documents by a specific due date if pertaining to a situation that requires immediate attention.)
{¶13} Although the time requirements for filing the Investigation Report and a response to the Motion for Default Judgment are tolled, nothing precludes the parties from filing. Accordingly, plaintiffs Motion for Default Judgment is DENIED as moot.
{¶14} 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).
{¶15} "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).
{¶16} 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).
{¶17} 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. Defendant met this burden by giving plaintiff the means to secure his property.
{¶18} 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).
{¶19} 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).
{¶20} 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). The court is persuaded by plaintiff's testimony that plaintiff's cellmate was allowed to participate in the packing of plaintiff's property as evidenced by his cellmate's signature on the Inmate Property Record of December 23, 2019.
{¶21} Defendant is not responsible for thefts committed by inmates unless an agency relationship is shown or it is shown that defendant was negligent. Walker v. Southern Ohio Correctional Facility, 78-0217-AD (1978). Plaintiff asserted defendant allowed his cellmate, Lovell, to inventory his property and his cellmate's signature is on the property record. This court is persuaded by plaintiff's testimony that a special relationship existed between plaintiff's cellmate and defendant by virtue of using his assistance to inventory plaintiff's property.
"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). A bailment is defined as a delivery of something * * * by one party to another, to be held according to the purpose or object of the delivery, and to be returned * * * when that purpose is accomplished. (Footnotes omitted.) 8 Ohio Jurisprudence 3d (1978), 401, Bailments, Section 2." Bacote v. Ohio Department of Rehabilitation and Correction, 61 Ohio Misc.2d 284, 578 N.E.2d 565 (Ct. of Cl. 1988). A bailment
relationship was created when ODRC's agent removed plaintiff and sent him to TCU. At that time, ODRC's agents were responsible to secure plaintiffs property and protect it from loss. See Smith v. Ohio Department of Rehabilitation and Correction, 2016-00762AD, 2017-Ohio-9441.
{¶22} Negligence on the part of the defendant has been shown in respect to the loss of the following property items: 15" ClearTunes television and remote, art supplies, JP5 player, a blanket, seven pairs of socks and underwear. The remainder of the property items plaintiff claims are missing did not appear on the November 4, 2019 Inmate Property Record.
{¶23} The standard measure of damages for personal property loss is market value. McDonald v. Ohio State Univ. Veterinary Hosp., 67 Ohio Misc.2d 40, 644 N.E.2d 750 (Ct. of Cl. 1994).
{¶24} As trier of fact, this court has the power to award reasonable damages based on evidence presented. Sims v. Southern Ohio Correctional Facility, 61 Ohio Misc.2d 239, 577 N.E.2d 160 (Ct. of Cl. 1988).
{¶25} Damage assessment is a matter within the function of the trier of fact. Litchfield v. Morris, 25 Ohio App.3d 42, 495 N.E.2d 462 (10th Dist. 1985). 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, 102 Ohio App.3d 782, 658 N.E.2d 31 (12th Dist. 1995). Based upon the Sales Order from Walkenhorst's dated October 3, 2019, plaintiff incurred the loss of a blanket, $18.90; six pairs of socks, $5.00; and five pairs of underwear, $21.90.
{¶26} Plaintiff has the burden of proof to prove the amount of damages. Walls v. Wildermuth, 10th Dist. No. 98AP-400 (November 19, 1988). Furthermore, both plaintiffs 15" ClearTunes television and JP5 are depreciable property. Accordingly, the date of purchase and costs are necessary to determine the amount of damages.
However, plaintiff has presented no evidence concerning the age or purchase price of these two items. Accordingly, they are denied reimbursement. Finally, plaintiff has not proven the value of the lost art supplies.
{¶27} Therefore, plaintiff is granted judgment in the amount of $45.80, plus $25.00 for reimbursement of 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
{¶28} Plaintiffs Motion for Default Judgment is MOOT. 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 the plaintiff in the amount of $70.80, which includes reimbursement of the $25.00 filing fee. Court costs are assessed against defendant.