Kikumura v. United States

Order Yu Kikumura sued the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., claiming that a prison employee at the federal penitentiary at Marion, Illinois took $14.35 worth of his personal property from his cell. Kikumura claims that the prison employee, Robert Owens, took items that Kikumura had purchased at the prison commissary and which he was entitled to have in his cell. Owens admits that he took an empty shampoo bottle and food wrappers from Kikumura's cell in the course of a routine search of his cell. Owens denies taking from Kikumura's cell anything of value. After a bench trial the court found in favor of the United States. The court based its ruling on a finding that Kikumura's version of the events in this case was less credible than Owens's version. The court considered Kikumura's version less credible, in part, because he is a convicted felon. Because the court chose to believe Owens's story that he did not take anything from Kikumura's cell, it held that Kikumura had failed to show that Owens breached his duty to use reasonable care when examining Kikumura's cell. Kikumura now appeals the court's decision, arguing that the court erred by basing its decision on credibility judgments instead of only the uncontested facts. This argument is frivolous. The court, in a bench trial, is required to make findings of fact and may base those findings based on credibility judgments. Fed. R. Civ. P. 52(a); United States v. Mason, 974 F.2d 897, 900 (7th Cir. 1992). Our review of those facts is deferential, reversing only when there is clear error. Connors v. United States, 917 F.2d 307, 311 (7th Cir. 1990). Under this standard the court made apt findings in the proper exercise of it role as the finder of fact. The findings of the district court were not clearly erroneous, its order therefore is AFFIRMED.