to S.C. Reporter 11/7/17
S. Carson Assistant Attorney General.
DECISION OF THE MAGISTRATE
PETERSON MAGISTRATE JUDGE.
Plaintiff, an inmate in the custody and control of defendant,
brought this action for the destruction of his personal
property. The issues of liability and damages were not
bifurcated and the case proceeded to trial.
Plaintiff testified that on November 6, 2015, he discovered
that his cell had been searched by corrections officers while
he was away at chow. Plaintiff stated that for the most part
his belongings remained in their proper places. However,
plaintiff testified that his headphones had been snapped and
placed on top of the television. Plaintiff believed that
corrections officer Scott was responsible for the broken
headphones, although he admitted that he did not have any
personal knowledge that Scott broke his headphones.
Nevertheless, plaintiff maintained that Scott had previously
harassed him and that as a result, he had filed complaints
about Scott's behavior. Plaintiff testified that Scott
engaged in inappropriate behavior, opened his mail, discarded
his kites, which are letters of communication within the
prison, made threats, and otherwise disrespected plaintiff.
As a result of what plaintiff considered to be harassment
carried out by Scott, plaintiff concluded that Scott must
have broken his headphones perhaps in retaliation for the
Plaintiff testified that he filed a complaint concerning the
broken headphones and provided a copy of the complaint to his
unit manager. In response to the complaint, Scott confiscated
his broken headphones. Plaintiff also received a contraband
slip for the headphones. Plaintiff testified that a few weeks
later, he received "state pay" and requested that
his headphones be mailed out of the institution so that they
could be repaired. Plaintiff completed a withdrawal slip,
also known as a cash slip, that is dated January 8, 2016;
however, plaintiff states that the date is incorrectly listed
and should be December 9, 2015. Plaintiff testified that he
contacted Ms. Mahlman about mailing his headphones out of the
institution, but she refused to mail the headphones out of
the institution. As a result of Ms. Mahlman's decision,
plaintiff contacted the chief inspector's office by
filing a grievance, but plaintiffs grievance was apparently
denied. No other witnesses testified.
At the conclusion of plaintiffs case, defendant moved
pursuant to Civ.R. 41(B)(2) to dismiss any alleged claim of
"harassment." Peters v. Dept. of Rehab. &
Corr., 10th Dist. Franklin No. 14AP-1048,
2015-Ohio-2668, ¶ 10. The magistrate recommended
dismissal of any such claim.
Turning to plaintiffs claim regarding his headphones,
"[conversion is 'the wrongful exercise of dominion
over property to the exclusion of the rights of the owner, or
withholding it from his possession under a claim inconsistent
with his rights.'" Allan Nott Ent, Inc. v.
Nicholas Starr Auto, LLC, 110 Ohio St.3d 112,
2006-Ohio-3819, ¶ 36, quoting Joyce v. Gen. Motors
Corp., 49 Ohio St.3d 93, 96 (1990).
"In order to sustain an action for negligence, a
plaintiff must show the existence of a duty owing from the
defendant to the plaintiff or injured party, a breach of that
duty, and that the breach was the proximate cause of
resulting damages." Sparre v. Ohio Dept. of
Transp., 10th Dist. Franklin No. 12AP-381,
2013-Ohio-4153, ¶ 9.
"[Defendant] does not have the liability of an insurer
(i.e., is not liable without fault) with respect to inmate
property, but it does have the duty to make reasonable
attempts to protect such property." Triplett v. S.
Ohio Corr. Facility, 10th Dist. Franklin No. 06AP-1296,
2007-Ohio-2526, ¶ 7. "In conducting a shakedown of
an inmate's personal property, correction officers must
exercise reasonable and ordinary care." Moore v.
Ohio Dept. of Rehab. & Corr., 61 Ohio Misc.2d 214,
215 (Ct. of Cl.1988); see also Lister v. London Corr
Inst, Ct. of Cl. No. 2009-06524-AD, 2009-Ohio-7185,
"[A]n inmate plaintiff may recover the value of
confiscated property destroyed by agents of defendant when
those agents acted without authority or right to carry out
the property destruction. Berg v. Belmont Corr.
Inst, Ct. of Cl. No. 1997-09261-AD (Mar. 3, 1998).
However, plaintiff must prove he was the rightful owner of
the destroyed property and the destroyed items were
permissible." Noble v. Dept. of Rehab. &
Corr, Ct. of Cl. No. 2006-02838-AD, 2006-Ohio-7248,
Upon review of the evidence, the magistrate finds that
plaintiff failed to prove his claim by a preponderance of the
evidence. There is no dispute that plaintiff owned the
headphones and that on November 6, 2015, the headphones were
broken while plaintiff was at chow. However, plaintiff
theorized that Scott was responsible for his broken
headphones although he admitted that he did not have personal
knowledge that Scott broke his headphones. Furthermore,
plaintiff did not present any evidence regarding who broke
his headphones or even who searched his cell while he was
away at chow.
With respect to plaintiffs allegation that defendant would
not allow him to mail his property out of the institution, it
is well-established that "a correctional institution
cannot be held liable for the loss of contraband property
that an inmate has no right to possess."
Triplett at ¶ 7 citing Beaverson v. Ohio
Dept. of Rehab. & Corr, 61 Ohio Misc.2d 249, 250
(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; Strutton
v. Ohio Dept. of Rehab. & Corr, 61 Ohio Misc.2d 248,
249 (Ct. of Cl.1988). There is no dispute that plaintiff
received a contraband slip for the headphones.
Plaintiff nevertheless maintains that defendant violated Ohio
Administrative Code 5120-9-55 titled "contraband"
by destroying his personal property after only seven days.
Ohio Adm.Code 5120-9-55(C)(1)(c) provides that "Minor
contraband, valued at one hundred dollars or less, may,
thirty days after confiscation, be destroyed, donated,