UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TAMILA SUE ROSKIEWICH,

Plaintiff-Appellant,

v. No. 97-2261

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

James C. Fox, District Judge.

(CA-96-108-7-F)

Submitted: February 10, 1998

Decided: February 25, 1998

Before WIDENER and ERVIN, Circuit Judges, and

HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Jeffrey S. Miller, Jacksonville, North Carolina, for Appellant. Janice

McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant

United States Attorney, Barbara D. Kocher, Assistant United States

Attorney, Raleigh, North Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:

Tamila Sue Roskiewich appeals from the district court's order

granting the Defendant's motion for summary judgment on her complaint filed pursuant to the Federal Tort Claims Act, 28 U.S.C.

§§ 2671-2680 (1994). Finding no reversible error, we affirm.

Private William Currier, USMC, was convicted in Vermont of felony sex offenses against a minor in 1989. He was temporarily

returned to the Marine Corps after trial. However, he committed additional offenses punishable under the punitive articles of the Uniform

Code of Military Justice before he could be administratively separated. A general court-martial convicted Currier of two specifications

each of rape and forcible sodomy and one specification each of unauthorized absence, false swearing, and obstruction of justice. Currier

served his sentence in the brig on board Camp Lejeune Marine Corps

Base, North Carolina. Military authorities eventually approved Currier for external work details. Currier escaped from custody while

working on one of these details in 1992. Guards noticed Currier's

absence within a few minutes and initiated procedures pursuant to a

contingency plan. This plan included a press release notifying the

local media of the escape. The press release contained Currier's photograph and a description of his prior offenses.

Roskiewich alleged that she was shopping in a local K-Mart on the

afternoon following Currier's escape. She was in a rear aisle of the

store when Currier allegedly grabbed her from behind and sexually

molested her. Currier beat Roskiewich when she started screaming for

help. Currier fled but was captured by military authorities the next

day. Currier ultimately pled no contest to attempted rape and assault

in a state court.

Roskiewich's complaint alleged that military authorities were negligent in allowing someone with Currier's history of sexual assault to

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work on external work details. She further alleged that the military

was negligent in supervising Currier on the day of his escape. Roskiewich did not depose any witnesses during discovery, nor did she

identify any experts in the area of prison security. Instead, she relied

primarily on her own deposition testimony, the unsworn statements of

two brig guards, and the theory of res ipsa loquitur.

Summary judgment is appropriate when there is "no genuine issue

of material fact," given the parties' burdens of proof at trial. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Fed. R. Civ. P.

56(c). In determining whether the moving party has shown that there

is no genuine issue of material fact, we must assess the factual evidence and all inferences to be drawn therefrom in the light most

favorable to the non-moving party. See Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985). We review a grant of

summary judgment de novo. Higgins v. E.I. DuPont de Nemours &

Co., 863 F.2d 1162, 1167 (4th Cir. 1988). In the present case, we find

that the district court properly granted Defendant's motion.

Roskiewich failed to provide any direct evidence of negligence.

The decision to allow Currier to work on external work details is protected by the discretionary function exception to the Federal Tort

Claims Act.1 We also reject Roskiewich's claim that military authorities negligently supervised Currier on the day of his escape.2 Roskiewich relies primarily on two unsworn statements by brig guards.

In one statement, a guard, who was not one of the escorts assigned

to Currier's work detail, stated that on the morning of Currier's

escape he overheard Currier saying something to the effect that "the

place will light up like a Christmas tree." The guard immediately confronted Currier, who denied that he meant anything by the statement.

The guard ordered Currier to be quiet and get back in line. In the

other statement, a guard stated that after the escape he was

approached by a "Corporal Hill," who said that he overheard Currier

say that he was going to "swoop."

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1 28 U.S.C. § 2680(a) (1994).

2 We note that Roskiewich does not allege that military authorities were

negligent in their search for Currier.

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Appellant alleged that these statements put the military on notice

that Currier was planning to escape. We disagree. As for the first

statement, Roskiewich failed to present any evidence that such comments by prisoners were unusual or that the guard had a duty to report

the incident. In regard to the second statement, Roskiewich failed to

produce a statement from "Corporal Hill" or to provide any clue as

to "Corporal Hill's" identity or the time frame and context of Currier's alleged statement that he was going to "swoop." Accordingly, we

find that the district court properly concluded that Roskiewich failed

to present sufficient evidence of negligence.

We reject Roskiewich's contention that North Carolina law

required the district court to infer negligence from the fact that there

was an escape. The cases she relies on have been superseded by more

recent statutes. See, e.g., N.C. Gen. Stat.§ 162-59 (1997) ("Neither

the person having custody of the prisoner nor any jailer may be held

liable for the actions of any prisoner, including those actions committed during and after the escape of a prisoner, while the prisoner is outside their supervision pursuant to this section.").3 Finally, we find that

the district court properly declined to apply the theory of res ipsa

loquitur. Under North Carolina law, the doctrine is inapposite in cases

such as this where the cause of the incident is a matter of conjecture

and the plaintiff could have used the discovery process to determine

the human cause. See Simpson v. Cotton, 390 S.E.2d 345, 347 (N.C.

Ct. App. 1990).

We therefore affirm the district court's order. We dispense with

oral argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED

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3 This statute was in effect in its current form at the time of the offenses

in question.

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