UNPUBLISHED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Affirmed by unpublished per curiam opinion.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.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Theresa Shelton initiated this action against the United States pursuant 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 hospitalized and diagnosed with salmonella poisoning. Relying exclusively 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 management 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 relations, or sharing a contaminated drinking glass. The record also contained 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 substantial evidence in the record to support this second basis for the district 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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