Sent to S.C. Reporter 6/21/23
MEMORANDUM DECISION
FINDINGS OF FACT
{¶1} Robert Bates ("plaintiff), an inmate, filed a complaint against the defendant, Ohio Department of Rehabilitation and Correction ("ODRC"). Plaintiff related on March 31, 2022, at defendant's Southern Ohio Correctional Facility ("SOCF"), he was moved into restrictive housing ("the hole"). Plaintiff alleges that after having his property packed up, defendant informed him that they had given his food to other inmates. On April 6, 2022, plaintiff was released from restrictive housing, at which time plaintiff alleges that he was returned his 4B pack-up with all of his personal property missing. Plaintiff stated that he believed that defendant's agent had destroyed or lost his property purposefully in retaliation for him pursuing a separate, unrelated, legal action against prison staff. Plaintiff alleges that his property was either lost or stolen due to defendant's negligence. Plaintiff claimed to have lost all his personal property which includes: an unspecified amount of Union Supply Cloths, an unspecified amount of Special Needs X-Pres Magazines, an unspecified amount of Edward R. Hamilton Bookseller Company books, an unspecified amount of Special Needs X-Press books, and commissary items.
{¶2} Plaintiff seeks damages in the amount of $640.49 in lost property, his $25.00 filing fee, and $2,500 in punitive damages.
{¶3} Defendant submitted an Investigation Report denying liability in this matter. Defendant asserted that plaintiff failed to demonstrate that defendant was the proximate cause of his lost property and that he failed to prove that he owned all of the property in question. Specifically, defendant asserted that plaintiffs alleged losses were limited to a March 31, 2022, pack-up sheet. The pack-up sheet only listed a reasonable amount ("RA") of letters, papers, books, hair grease, and six bars of soap.
{¶4} Defendant attached plaintiffs Inmate Property Report, dated March 31, 2022, which plaintiff signed certifying that the above listed items are a complete and accurate inventory of all his personal property.
{¶5} Plaintiff did submit a response to defendant's Investigation Report. Wherein, plaintiff reasserts his initial claim that his property was left in his cell, that he agrees that he was denied reimbursement but that his cash slips demonstrate that he did purchase the items he seeks reimbursement for. Plaintiff further maintains that his claims were not fully investigated by defendant, and that he wishes the court to strike defendant's Investigation Report unless they provide the body cam footage of the officer who conducted the pack-up.
CONCLUSIONS OF LAW
{¶6} As an initial matter, plaintiff alleges that defendant's conduct was intentional and retaliatory. To determine if defendant should bear responsibility for an employee's wrongful act, a finding must be made, based on the facts presented, whether the injury-causing act was manifestly outside the course and scope of employment. Elliott v. Dept. of Rehab. & Corr., 92 Ohio App.3d 772, 775, 637 N.E.2d 106 (10th Dist. 1994); Thomas v. Dept. of Rehab. & Corr., 48 Ohio App.3d 86, 89, 548 N.E.2d 991 (10th Dist. 1988); Peppers v. Dept. of Rehab. & Corr., 50 Ohio App.3d 87, 90, 553 N.E.2d 1093 (10th Dist. 1988). It is only where the acts of state employees are motivated by actual malice or other such reasons giving rise to punitive damages that their conduct may be outside the scope of their state employment. James H. v. Dept. of Mental Health & Mental Retardation, 1 Ohio App.3d 60, 439 N.E.2d 437 (10th Dist. 1980). The act must be so divergent that it severs the employer-employee relationship. Elliott, at 775, citing Thomas, at 89, Peppers, at 90.
{¶7} Malicious purpose encompasses exercising "malice," which can be defined as the willful and intentional design to do injury, or the intention or desire to harm another, usually seriously, through conduct that is unlawful or unjustified. Jackson v. Butler Cty. Bd. of Cty. Commrs., 76 Ohio App.3d 448, 453-54, 602 N.E.2d 363 (12th Dist. 1991), citing Teramano v. Teramano, 6 Ohio St.2d 117, 118, 216 N.E.2d 375 (1966); and Bush v. Kelley's Inc., 18 Ohio St.2d 89, 247 N.E.2d 745 (1969).
{¶8} The Supreme Court of Ohio established that an employer is liable for the tortious conduct of its employee only if the conduct is committed within the scope of employment and, if the tort is intentional, the conduct giving rise to the tort must facilitate or promote the business of which the employee was engaged. Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991), citing Little Miami R.R. Co. v. Wetmore, 19 Ohio St. 110 (1869), and Taylor v. Doctors Hosp., 21 Ohio App.3d 154, 486 N.E.2d 1249 (10th Dist. 1985).
{¶9} Further, an intentional and willful tort committed by an employee for their own purposes constitutes a departure from the employment, so that the employer is not responsible. Szydlowski v. Dept. of Rehab. & Corr., 79 Ohio App.3d 303, 607 N.E.2d 103 (10th Dist. 1992), citing Vrabel v. Acri, 156 Ohio St. 467, 103 N.E.2d 564 (1952). The facts of this case, taken as plaintiff asserted, would constitute an intentional tort committed by defendant's employee performed for their own personal purposes. Following this rationale, plaintiff cannot maintain a cause of action against defendant for the intentional, malicious act of its employee. Therefore, plaintiffs claim as it relates to an intentional tort done by defendant's employee must be denied.
{¶10} 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).
{¶11} "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).
{¶12} 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).
{¶13} 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.
{¶14} 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).
{¶15} 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).
{¶16} 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.
{¶17} 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).
{¶18} 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 finds plaintiffs statements credible.
{¶19} Plaintiff signed the Inmate Property Record of March 31, 2022, stating: "I certify that the above listed items are a complete and accurate inventory of all my personal property." Plaintiff was not present for this pack-up. A review of this Record reveals the Titled Items plaintiff signed off on were: one GTL Tablet with headphones. Stationary Items included: a reasonable amount of books, a reasonable amount of letters, a reasonable amount of papers, and a reasonable amount of assorted pictures. Other items included: a reasonable amount of hair grease, six soap bars, one toothbrush, three ounces of coffee, two bowls with lids, and one package of vitamins.
{¶20} A review of the Inmate Property Record of March 31, 2022, reveals that a reasonable amount of books and letters/papers were listed on the Inmate Property Report which plaintiff signed.
{¶21} In plaintiffs complaint, plaintiff included five Personal A/C Withdrawal Check Out Slips. These receipts show plaintiff ordered from Special Needs X-Press three times: On March 29, 2021, for $108.00; On May 11, 2021, for $99.00; and on October 4, 2021, for $104.00. Plaintiff ordered from Edward R. Hamilton Bookseller Company on March 15, 2022, for $44.69. Finally, plaintiff ordered from Union Supply Direct on April 23, 2020, for $189.80.
{¶22} "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)."
{¶23} 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). Further, plaintiffs failure to prove delivery of the property 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. Ohio Department of Rehabilitation and Correction, 86-02821-AD (1987). Plaintiff cannot recover for property loss when he fails to produce sufficient evidence to establish that defendant actually assumed control over the property. Whiteside v. Orient Correctional Inst, Ct. of Cl. No. 2002-05751, 2005-Ohio-4455; obj. overruled, 2005-Ohio-5068.
{¶24} This court has found clear evidence of purchase and ownership of the books and magazines claimed by plaintiff.
{¶25} The only issue left is damages. 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).
{¶26} In a situation where damage assessment for personal property destruction or loss based on market value is essentially indeterminable, a damage determination may be based on the standard value of the property to the owner. This determination considers such factors as value to the owner, original cost, replacement cost, salvage value, and fair market value at the time of the loss. Cooper v. Feeney, 34 Ohio App.3d 282, 518 N.E.2d 46 (12th Dist. 1986).
{¶27} The books and magazines are depreciable items. This court has the authority to determine depreciation based on the age of the property in question. See Weaver v. Ohio Department of Rehabilitation and Correction, 2011-10134AD (2012); and Woodward v. Ohio Dept. of Rehabilitation and Correction, 2016-00267AD (2016); and Bonnette v. Ohio Department of Rehabilitation and Correction, Ct. of Cl. 2017-00187AD (2018).
{¶28} Plaintiff owned a reasonable amount of books and magazines for roughly two years, thus at a depreciated value of 60% of replacement cost, the reasonable amount of books and magazines are valued at $213.41. Thus, the court finds the damages for the books and magazines are $213.41.
{¶29} Plaintiff purchased unidentifiable items from Union Supply Direct. While plaintiff was able to provide a receipt for purchase from this store, the receipt does not identify which items were purchased. 61-PRP-01 V1.A7 states: "Incarcerated individuals may be required to provide proof of ownership for any item of their personal property at any time." Plaintiff was unable to do this.
{¶30} According to ODRC policy, inmates are only allowed to keep two weeks' worth of commissary items. 61-PRP-01 V1.A7 states: "Incarcerated individuals may be required to provide proof of ownership for any item of their personal property at any time." Plaintiff was unable to do this.
{¶31} Therefore, judgment is rendered in favor of plaintiff in the amount of $213.41, plus $25.00 for reimbursement of the filing fee 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
{¶32} 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 $238.41, which includes the filing fee. Court costs are assessed against defendant.