Velez v. Ohio Dept. of Rehab. & Corr. , 2020 Ohio 2932 ( 2020 )

[Cite as Velez v. Ohio Dept. of Rehab. & Corr., 2020-Ohio-2932.]
JOSE VELEZ Case No. 2019-00053AD
Plaintiff Deputy Clerk Daniel R. Borchert
v. MEMORANDUM DECISION
OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION
Defendant
{¶1} On October 3, 2019, this court issued a Memorandum Decision granting
judgment in favor of defendant, Ohio Department of Rehabilitation and Correction
(“ODRC”). This court found that:
“When an inmate signs a receipt stating defendant packed up all of his property
and the inmate did not contest the fact of this receipt, he has failed to show the
Department of Corrections was liable for the alleged property loss. Yocum v.
Chillicothe Correctional Institution, 78-0142-AD (1978). Here, plaintiff signed an
inmate property record on August 29, 2017, and this record, as noted, indicates
plaintiff did not contest the receipt of his property. Further, none of the items
plaintiff listed in the complaint appear on plaintiff’s property record except for one
power strip. Plaintiff has failed to produce any evidence contrary to the property
record which indicates the power strip was present at pack up. Further, it
appears that plaintiff indicated receipt of all his property, including the power strip
in question, on August 29, 2017.”
{¶2} Accordingly, plaintiff Jose Velez’s case was denied.
{¶3} On October 15, 2019, plaintiff filed a Motion for Court Review. On
November 5, 2019, a judge of the Court of Claims issued an Entry Reversing
Administrative Determination. The judge in reversing the deputy clerk’s decision, in
pertinent part, stated:
[Type here]
“In the deputy clerk’s Entry of Administrative Determination, the deputy clerk
stated, ‘When an inmate signs a receipt stating defendant packed up all of his
property and the inmate did not contest the fact of this receipt, he has failed to
show the Department of Corrections was liable for the alleged property loss.’
(Entry of Administrative Determination at ¶ 9). The deputy clerk found that,
because plaintiff signed the sheet confirming that all of the personal property
listed on the inventory form had been returned to him, he did not contest the
receipt of the items plaintiff alleged were missing from the sheet. Id. However,
the inmate property record shows that plaintiff refused to sign and confirm that all
of the above listed items on the sheet were an accurate and complete inventory
of all his personal property. Plaintiff only signed the form confirming the items
listed on the sheet were returned to him, therefore, the court finds the clerk erred
in finding that plaintiff failed to contest the receipt of all of his property.
Accordingly, the deputy clerk’s October 3, 2019 Entry of Administrative
Determination is REVERSED, and this case is remanded to the deputy clerk for
further proceedings.”
{¶4} Plaintiff asserted the following property items were lost, after they came
into possession of ODRC’s agents: hair trimmers, $22.71; plastic jug, $2.25; two power
strips, $22.60; legal work, $163.00; and commissary items, $207.54. Plaintiff seeks
total damages of $418.10. It should be noted that plaintiff was not required to submit
the $25.00 filing fee.
{¶5} Initially, it should be noted on the Inmate Property Record dated
August 27, 2017, a shaver/trimmer and two power strips are listed. Plaintiff signed the
Inmate Property Record on August 29, 2017, acknowledging the receipt of these items.
Accordingly, plaintiff cannot be compensated for items he received.
“When prison authorities obtain possession of an inmate’s property, a bailment
relationship arises between the correctional facility and the inmate. Buhrow v.
[Type here]
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 agents packed plaintiff’s property.
{¶6} By virtue of the bailment 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. Department of Rehabilitation and
Correction, 85-05029-AD (1985); Cox v. Southern Ohio Training Center, 84-03740-AD
(1986).
{¶7} It appears the remainder of plaintiff’s property items were lost while under
defendant’s control. However, plaintiff has the burden to prove the amount of damages.
Walls v. Wildermuth, 10th Dist. No. 98AP-400 (November 19, 1998).
{¶8} While plaintiff asserts that his legal work was valued at $163.00, plaintiff
provides no support for this figure. The court will not rely on plaintiff’s valuation of his
property to prove damages. See Dawson v. Ohio Department of Rehabilitation and
Correction, 2017-00587AD (2017) and Canales v. Ohio Department of Rehabilitation
and Correction, 2019-00534-AD (2019) aff’d jud (2020).
{¶9} Plaintiff has proven, by a preponderance of the evidence, that he suffered
the loss of his commissary items purchased shortly before he was placed in
segregation. Plaintiff also suffered the loss of a plastic jug. Plaintiff’s damages total
$209.79.
Therefore, plaintiff is GRANTED judgment in the amount of $209.79.
[Type here]
JOSE VELEZ Case No. 2019-00053AD
Plaintiff Deputy Clerk Daniel R. Borchert
v. ENTRY OF ADMINISTRATIVE
DETERMINATION
OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION
Defendant
{¶10} 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 $209.79. Court costs are assessed against the
defendant.
DANIEL R. BORCHERT
Deputy Clerk
Filed 3/26/20
Sent to S.C. reporter 5/14/20