Opinion
2022-00241AD
10-07-2022
LUCAS LEVI SIMS Plaintiff v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION Defendant
Sent to S.C. Reporter 2/8/2023
MEMORANDUM DECISION
FINDINGS OF FACT
{¶1} Lucas Levi Sims ("plaintiff"), an inmate, filed a claim against the defendant, Ohio Department of Rehabilitation and Correction ("ODRC"). Plaintiff related on January 15, 2021, at defendant's Belmont Correctional Institution ("BECI"), his property was packed up because he was being placed in segregation and several of his personal property items were taken improperly. These items included: 45 paint brushes, 48 tubs of paint, 6 paint bottles, 2 paint kits, an easel, 10 paint sponges, 2 finished paintings, 8 paint canvas', 2 sets of colored pencils, 20 pins, 20 sweatshirts, 10 t-shirts, 30 undershirts, 10 sweatpants, 20 shorts, 60 socks, 5 sets of thermal top and bottoms, 5 pants, 4 baseball hats, 8 knit caps, 10 wash cloths, 10 towels, 5 sheets, 15 net bags, 15 blankets, 5 pillows with cases, a leather belt, 5 laundry soap, 5 fans, 4 power cords, 10 lotions, an eye blinder, 4 hoodie zipper coats, 2 shave gels, 10 soap bars, a rapid cooker, 4 cups, 2 pairs of tennis shoes, 2 pairs of dress shoes, 2 pairs of sandals, 10 headphones, 4 cables, 2 splitters, 5 extension cords, 20 toothbrushes, 30 toothpastes, 2 toothbrush holders, and various food items. Plaintiff seeks damages in the amount of $2,000.00. Plaintiff was not required to submit the $25.00 filing fee.
{¶2} Defendant submitted an Investigation Report denying liability in this matter. Defendant asserted that when plaintiff's property was packed up it was over the 2.4 cubic feet limit, and as a result it was classified as contraband and subsequently destroyed as minor contraband. Defendant attached a Rules Infraction Board ("RIB") decision regarding plaintiff's property dated January 19, 2021, affirming the decision that plaintiff's property was contraband.
{¶3} Defendant submitted an Inmate Property Record dated January 15, 2021, which plaintiff signed, certifying that the above listed items are a complete and accurate inventory of all of his personal property. ODRC noted all contraband property was excluded from this list.
{¶4} ODRC also submitted an Inmate Contraband Slip dated January 19, 2021, which plaintiff signed authorizing the destruction of his property. A review of both documents reveals the vast majority of plaintiff's property was found to be contraband. However, it appears the following items were lost while in defendant's possession: headphones, 1 fan, 1 baseball hat, 1 stocking hat, 3 t-shirts, 1 pair of sports shoes, 3 gym shorts, 6 pairs of socks, 1 thermal top and bottom, 2 towels, 4 undershirts, 4 undershorts, 2 washcloths, a bowl, 1 toothbrush holder, 1 pillow, 1 lotion, 3 bars of soap, 2 toothbrushes, and 1 toothpaste.
{¶5} Plaintiff did not submit a response to defendant's Investigation Report. CONCLUSIONS OF LAW
{¶6} 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).
{¶7} "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).
{¶8} 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).
{¶9} 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.
{¶10} 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).
{¶11} 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).
{¶12} 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 DRC 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.
{¶13} 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).
{¶14} 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).
{¶15} On January 15, 2021, plaintiff was issued a conduct report for having excess amounts of property. Plaintiff was found guilty of a Rule 51 violation, possession of contraband, by Sgt. Clower. This decision was affirmed by the Rules Infraction Board ("RIB").
{¶16} OAC 5120-9-33 (B) and (D) state:
"(B) Excluding large titled items (e.g., televisions and typewriters etc.), state issued bedding, coats/jackets, and permitted shoes, an inmate may not possess more than 2.4 cubic feet of combined state and personal property unless specifically authorized pursuant to this rule.
"(D) Each inmate is responsible for ensuring that his personal property remain in conformity with the foregoing limitations. Property in excess of these limitations will be deemed contraband and disposed of pursuant to rule 5120-9-55 of the Administrative Code."
{¶17} OAC 5120-9-55(A)(2)(b)&(C)(1)(b)&(c) states:
"(A) There shall be two classes of contraband as defined in the rule. Contraband shall be classified as 'major' or 'minor' contraband. The distinction shall determine the method or manner of disposition of such contraband.
"(2) 'Minor contraband', as used in this rule, shall refer to items possessed by an inmate without permission and:
"(b) The quantities in which an allowable item is possessed is prohibited. "(C) Disposition of contraband: any item considered contraband under this rule may be confiscated. "(1) Minor contraband.
"(b) Minor contraband received in the mail may be returned to the sender if the inmate agrees to pay postage costs.
"(c) Minor contraband, valued at one hundred dollars or less, may, thirty days after confiscation, be destroyed, donated, utilized by the institution for training or other official purposes, or utilized in non-monetary offers to compromise in accordance with rule 5120-9-32 of the Administrative Code, by the order of the warden when the institution has attempted to contact or identify the owner of the personal
property and those attempts have been unsuccessful or the inmate who owns the personal property agrees in writing to the disposal of the property in question."
{¶18} An inmate's appeal of an RIB decision does not relate to civil law, a proper subject for adjudication pursuant to Chapter 2743 of the Ohio Revised Code. Instead, the appeal relates to private rights and remedies involving criminal proceedings and penalties imposed by a disciplinary board. Therefore, it falls outside the Court's exclusive jurisdiction. Maynard v. Jago, 76-0581-AD (1977). On January 19, 2021, the vast majority of the property listed in the complaint plus some was determined to be contraband. Therefore, the court has no jurisdiction to change that decision.
{¶19} It is well-established that "a correctional institution cannot be held liable for the loss of contraband property that an inmate has not right to possess." Triplett v. S. Ohio Corr. Facility., 10th Dist. No. 06AP-1296, 2007-Ohio-2526, ¶ 7, citing Beaverson v. Ohio Dept. of Rehab. &Corr., 61 Ohio Misc.2d 249, 250577 N.E.2d 166 (Ct. of Cl. 1988). See also, Maxwell v. Richland Corr. Inst., Ct. of Cl. No. 2007-03935-Ad, 2008-Ohio-2868, ¶ 18; Garrett v. Richland Corr. Inst., Ct. of Cl. No. 2003-10872-AD, 2004-Ohio-2622, ¶ 7; and Strutton v. Ohio Dept. of Rehab. &Corr., 61 Ohio Misc.2d 248, 249, 577 N.E.2d 166 (Ct. of Cl. 1988). Therefore, the claim for the contraband items is denied.
{¶20} Further, an inmate has no right to pursue a claim for confiscated, stolen, or lost property in which he cannot prove any right of ownership. Watley v. Ohio Department of Rehabilitation and Correction, 2005-05183-AD (2005).
{¶21} However, it appears that defendant's agents took control of plaintiff's property which was not considered contraband.
{¶22} A review of the Inmate Property Record of January 15, 2021, reveals the following property items were not listed on the Inmate Contraband Slip which plaintiff signed: headphones, a fan, baseball cap, 6 pairs of socks, 4 undershirts, 4 undershorts, 1 thermal top and bottom, 3 pairs of gym shorts, 2 toothbrushes, 1 toothpaste, 1 lotion, 3 bars of soap, 1 stocking hat, and 1 pair of sports shoes. Plaintiff submitted invoices from Walkenhorst's, Union Supply Direct, and the commissary at Belmont Correctional Institution. The property in question was purchased approximately a year earlier.
{¶23} "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)."
{¶24} 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).
{¶25} While plaintiff seeks $134.52 for the loss of these items, all items with the exception of the toothbrushes, toothpaste, lotion, and bars of soap are depreciable items. After consulting the Claims Pages Depreciation Guide, plaintiff's property loss equals $92.41.
{¶26} However, ODRC's investigation revealed the following:
"After a review of Inmate Sims' (A763923) grievance file, it has been determined that Inmate Sims never filed a grievance nor an appeal concerning his property."
{¶27} The Tenth District Court of Appeals in Semenchuk v. Ohio Department of Rehabilitation and Correction, 10th Dist. 10AP-19, 2010-Ohio-5551, stated:
"Pursuant to R.C. 2969.26(A), if an inmate commences a civil action or appeal against a government entity or employee and if the inmate's claim in the civil action or the inmate's claim in the civil action that is being appealed is subject to the grievance system for the state correctional institution, jail, workhouse, or violation sanction center in which the inmate is confined, the inmate shall file both of the following with the court: (1) An affidavit stating that the grievance was filed and the date on which the inmate received the decision regarding the grievance, and (2) A copy of any written decision regarding the grievance from the grievance system." ¶ 26
Plaintiff did not file a grievance in this case. "Compliance with R.C. 2969.26 is mandatory and the failure to satisfy this statutory requirement is grounds for dismissal." ¶ 28. See State ex rel. Spurlock v. Sevrey, 10th Dist. No. 06AP-1291, 2007-Ohio-3550; and Hamilton v. Wilkinson, 10th Dist. No. 04AP-502, 2004-Ohio-6982.
{¶28} Therefore, judgment is rendered in favor of defendant.
ENTRY OF ADMINISTRATIVE DETERMINATION
{¶29} 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.