UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THERESA SHELTON,
Plaintiff-Appellant,

v.                                                                 No. 95-2625

UNITED STATES OF AMERICA,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, District Judge.
(CA-94-233-1)

Argued: July 8, 1996

Decided: August 23, 1996

Before WILKINSON, Chief Judge, HAMILTON, Circuit Judge,
and JOSEPH F. ANDERSON, JR., United States District Judge for
the District of South Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Silas Mason Preston, PRESTON & WEESE, L.C.,
Lewisburg, West Virginia, for Appellant. Stephen Michael Horn,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee. ON BRIEF: Rebecca A. Betts, United States Attorney,
Charleston, West Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Theresa Shelton initiated this action against the United States pur-
suant to the Federal Tort Claims Act, 28 U.S.C.§§ 1346(b) and 2671,
et seq. Shelton is an inmate at the Federal Prison Camp at Alderson,
West Virginia. In her complaint, Shelton contends that she contracted
salmonella poisoning from food served in the prison camp's central
dining room. After a bench trial, the district court found that Shelton
had failed to prove actionable negligence and entered judgment in
favor of the defendant. Shelton thereafter took a timely appeal to this
court. We review the district court's findings for clear error. United
States v. Daughtery, 874 F.2d 213 (4th Cir. 1989).

At trial, Shelton claimed that on April 24, 1993, she ate soft-boiled
eggs for breakfast and fried chicken for dinner and thereafter was hos-
pitalized and diagnosed with salmonella poisoning. Relying exclu-
sively upon the doctrine of res ipsa loquitor , Shelton contended that
food service workers in the central dining room negligently prepared
the poultry products which caused her salmonella poisoning.

In West Virginia, application of the res ipsa loquitor doctrine
requires that three elements be present: (1) the instrumentality which
causes the injury must be under the exclusive control and manage-
ment of the defendant; (2) the plaintiff must be without fault; and (3)
the injury must be such that in the ordinary course of events it would
not have happened had the one in control of the instrumentality used
due care. Bronz v. St. Jude's Hospital Clinic , 402 S.E.2d 594 (W.Va.
1991). The decision of the district court rests, in part, upon its finding
that the plaintiff failed to establish the first element of res ipsa
loquitor. Specifically, the court found that the plaintiff had failed to
establish that the food service employees in the central dining room
had exclusive control over all food sources for Alderson inmates. The
court found that inmates are able to purchase food from vending

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machines, from a canteen in the recreation department, and from the
commissary. These food sources are not all controlled by government
employees. The record before the district court also indicated that,
although salmonella bacteria is passed through either eggs or fowl
about ninety percent of the time, the bacteria can occasionally be
transmitted in other ways, such as hand to hand contact, sexual rela-
tions, or sharing a contaminated drinking glass. The record also con-
tained evidence of theft from the food facilities which could provide
another source of mishandled food and salmonella poisoning. On this
record, the district court was justified in concluding that the plaintiff
had failed to show that the instrumentality which caused her injury
was under the exclusive control and management of the defendant.

The district court also found that the defendant had rebutted any
inference of negligence which might otherwise arise. There is sub-
stantial evidence in the record to support this second basis for the dis-
trict court's conclusion.

After reviewing the record in this case, we are convinced that the
district court's findings are supported by evidence in the record. For
this reason, we affirm on the basis of the reasoning of the district
court. Theresa Shelton v. United States of America, C/A No. 1:94-
CV-0233 (S.D. W.Va., July 5, 1995).

AFFIRMED

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