UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7262
GREGORY EARL BAKER,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee,
and
WARDEN STEPHENS, in her personal capacity; A. W. BATTS, in
his personal capacity; A. W. CAMPOS, in his personal
capacity; MR. DUCHESNE, in his personal capacity; BRIAN
BURT, in his personal capacity; MS. SERRANO-MERCADO, in her
personal capacity,
Defendants.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:11-ct-03070-D)
Submitted: February 29, 2016 Decided: April 19, 2016
Before FLOYD, THACKER, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gregory Earl Baker, Appellant Pro Se. Sharon Coull Wilson,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Gregory Earl Baker appeals the district court’s orders
denying relief on his complaint filed pursuant to the Federal
Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (2012), and
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971). Baker asserted claims of medical
malpractice, negligence, and negligent infliction of emotional
distress against the Government and various prison officials
based on their treatment of his penile cancer.
The general facts of this case are undisputed. When Baker
began his term of incarceration at the Federal Correctional
Complex in Butner, North Carolina (“Butner”) in September 2008,
he complained of certain urological symptoms. Dr. Adrian Ogle,
a urologist who works with Butner, saw Baker on December 19,
2008, and conducted surgery on January 13, 2009 to relieve
Baker’s symptoms. A biopsy conducted during that surgery did
not reveal any cancer. Throughout early 2009, Dr. Ogle saw
Baker and treated him for his symptoms, but was reluctant to
order a second biopsy because he believed that Baker did not
have cancer and that a second biopsy would only exacerbate
Baker’s condition. As Baker’s condition worsened, Dr. Ogle
ordered a biopsy on May 15, 2009. Dr. Ogle’s next surgery date,
May 22, 2009, was fully booked, and a combination of his
schedule and circumstances at the prison resulted in delay of
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the biopsy until July 16, 2009. Baker was diagnosed with cancer
on July 21, 2009, and opted to forgo immediate partial
amputation in favor of waiting to be evaluated for a Mohs’
procedure. 1 Following further delays, an outside doctor saw
Baker on September 14, 2009 and told him that a Mohs’ surgery
would be ineffective due to the size and depth of the tumor and
its proximity to the urethra. Baker chose to be evaluated for
brachytherapy, 2 and on September 23, 2009, Dr. Brant Inman saw
Baker and informed him that brachytherapy would be ineffective
and that Baker would require a partial penectomy. Dr. Inman
performed this surgery on September 24, 2009, and later
performed an inguinal pelvic lymphadenectomy on November 19,
2009. In his suit, Baker argued that had Appellees treated his
condition properly, his cancer would have been detected early
enough to avoid a penectomy.
The district court dismissed Baker’s Bivens claims against
the individual defendants for failure to state a claim, finding
that two medical professionals were entitled to absolute
1
“Mohs surgery is a specialized procedure that is designed
to remove complex forms of skin cancer.” Rosin v. United
States, 786 F.3d 873, 875 n.1 (11th Cir.), cert denied, 136 S.
Ct. 429 (2015).
2
Brachytherapy is a type of radiation therapy involving
insertion of a balloon into the body with a radiation source
inside the balloon. Hologic, Inc. v. SenoRx, Inc., 639 F.3d
1329, 1330 (Fed. Cir. 2011).
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immunity under 42 U.S.C. § 233 (2012), and that Baker had failed
to allege facts indicating that the remaining individuals were
personally indifferent to his medical needs or knew of their
subordinates’ allegedly unconstitutional acts. The court later
dismissed Baker’s malpractice claim for failure to state a claim
because Baker had not complied with North Carolina Rule of Civil
Procedure 9(j), which requires prefiling certification that a
malpractice complaint relies on expert witnesses or res ipsa
loquitur.
Baker proceeded to a bench trial on his claims of
negligence and negligent infliction of emotional distress.
Prior to trial, the Government disclosed the opinion of Dr. Paul
A. Hatcher that, had the biopsy been performed on June 5, 2009,
it would have revealed the tumor, but Baker would not have been
a suitable candidate for Mohs’ surgery or brachytherapy, and a
partial penectomy “clearly” would have been the best option.
Dr. Hatcher further opined that a biopsy on March 22, 2009, or
May 22, 2009, would have made no difference as the cancer was
already too advanced for the alternate procedures.
At trial, Dr. Hatcher testified that by early December
2008, the cancer was sufficiently advanced that a partial
penectomy and lymphadenectomy would have been necessary, and
that attempting a Mohs’ surgery or brachytherapy would have left
Baker in a worse condition than that which actually resulted.
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Baker objected that the Government had not disclosed this
opinion, and the district court overruled this objection. Dr.
Daniel J. Canter offered similar testimony, and Dr. Inman
testified on Baker’s behalf. Finding the Government’s experts
to be credible, the district court held that any misconduct by
the Government did not cause Baker’s injury because even if the
cancer had been treated in December 2008, the outcome would have
been the same. Accordingly, the court granted judgment in favor
of the Government.
Baker moved for a new trial, arguing that Dr. Hatcher’s
testimony was improper and incredible, that the district court
misapplied the foreseeability standard, and that the
preponderance of the evidence supported Baker. The district
court dismissed this motion as both untimely and meritless.
Baker appeals. On appeal, Baker argues that the district court
erred by dismissing his Bivens and malpractice claims, admitting
Dr. Hatcher’s testimony, and denying the motion for a new trial. 3
3 Portions of Baker’s brief challenge the district court’s
determination of the merits of his claims. “[W]e review
judgments stemming from a bench trial under a mixed standard:
factual findings are reviewed for clear error, whereas
conclusions of law are reviewed de novo.” Makdessi v. Fields,
789 F.3d 126, 132 (4th Cir. 2015) (internal quotation marks
omitted). “In cases in which a district court’s factual
findings turn on assessments of witness credibility or the
weighing of conflicting evidence during a bench trial, such
findings are entitled to even greater deference.” Helton v.
AT&T, Inc., 709 F.3d 343, 350 (4th Cir. 2013).
(Continued)
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We review de novo a district court’s dismissal for failure
to state a claim. Kensington Volunteer Fire Dep’t, Inc. v.
Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012). In order to
succeed on a supervisory liability claim under Bivens, a
plaintiff may not rely on respondeat superior, but must show
“that the supervisor had actual or constructive knowledge that
her subordinate was engaged in conduct that posed a pervasive
and unreasonable risk of constitutional injury to citizens like
the plaintiff,” and that the supervisor’s response showed
“deliberate indifference to or tacit authorization of the
alleged offensive practices,” and caused the plaintiff’s injury.
Wilkins v. Montgomery, 751 F.3d 214, 226-27 (4th Cir. 2014)
(brackets and internal quotation marks omitted). On appeal,
Baker argues that he sought medical attention from prison
officials, but does not indicate that the individual Appellees
had actual or constructive knowledge that his treatment was
Baker challenges the district court’s finding that any
delays did not cause his injury, arguing that he would have had
other treatment options had the cancer been diagnosed in early-
or mid-2009. Dr. Hatcher and Dr. Canter testified that such
options would not have been viable, and the district court found
this testimony credible. Although Baker contends that the court
should not have credited Dr. Hatcher’s testimony over Dr.
Inman’s, we conclude that the court did not clearly err under
the highly deferential standard applied to credibility
determinations. Because this finding was dispositive of Baker’s
claims, we do not reach Baker’s arguments regarding the
reasonable person standard or foreseeability.
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inadequate, or that the complaint alleged facts showing such
knowledge. Accordingly, we affirm the district court’s
dismissal of Baker’s Bivens claims.
Baker also argues that the district court erred by
dismissing his malpractice claim “without ruling on it
constitutionally.” It appears that Baker is attempting to renew
his argument that Rule 9(j) violated his right to access the
courts because it required him to pay expert fees prior to
filing his suit and violated the Equal Protection Clause by
placing burdens on medical malpractice plaintiffs that are not
placed on other personal injury plaintiffs. We conclude that
any error in this regard is harmless because the district
court’s finding that Baker’s outcome would have been the same
even if his cancer had been diagnosed in December 2008 precludes
Baker’s claim that the doctors’ alleged malpractice in failing
to timely diagnose and treat his cancer proximately caused his
injuries.
Baker’s primary argument is that the Government failed to
disclose Dr. Hatcher’s testimony that a Mohs’ surgery or
brachytherapy would have been ineffective as early as December
2008 and that the district court erred by failing to exclude
this testimony. We review for abuse of discretion a district
court’s decision whether to exclude an expert witness. Wilkins,
751 F.3d at 220. An expert disclosure “must be accompanied by a
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written report” containing “a complete statement of all opinions
the witness will express and the basis and reasons for them.”
Fed. R. Civ. P. 26(a)(2)(B)(i). If a party fails to provide a
proper expert disclosure, “the party is not allowed to use that
. . . witness to supply evidence . . . at a trial, unless the
failure was substantially justified or is harmless.” Fed. R.
Civ. P. 37(c)(1). In determining whether a party’s failure to
properly disclose an expert was either “substantially justified”
or “harmless,” a court should consider the following factors:
(1) the surprise to the party against whom the
evidence would be offered; (2) the ability of that
party to cure the surprise; (3) the extent to which
allowing the evidence would disrupt the trial; (4) the
importance of the evidence; and (5) the non-disclosing
party’s explanation for its failure to disclose the
evidence.
Wilkins, 751 F.3d at 222 (quoting S. States Rack & Fixture, Inc.
v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003)).
“The burden of establishing these factors lies with the
nondisclosing party.” Id. The district court has “broad
discretion to determine whether a nondisclosure of evidence is
substantially justified or harmless.” S. States, 318 F.3d at
597.
We conclude that the similarity of the undisclosed
testimony to the disclosed testimony of Dr. Hatcher and Dr.
Canter causes the first three factors to weigh in favor of the
Government. With respect to the fourth factor, although Dr.
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Hatcher’s testimony concerned an important element of Baker’s
case, it was redundant with Dr. Canter’s testimony, which the
district court found credible. With respect to the final
factor, the Government indicated that its disclosure did not
address the period prior to March 22, 2009, because, at the time
of the disclosure, the Government was unaware of Baker’s
position that the cancer could have been detected prior to that
date. In light of these factors, we conclude that the district
court did not abuse its discretion in admitting Dr. Hatcher’s
testimony.
Finally, Baker argues that the district court erred by
denying his motion for a new trial. Baker does not challenge
the district court’s finding that this motion was untimely, but
argues that his attorney rendered ineffective assistance in
filing late. Because there is no right to effective assistance
of counsel in a civil case, see Pitts v. Shinseki, 700 F.3d
1279, 1284–86 (Fed. Cir. 2012) (collecting cases), this claim is
meritless.
Accordingly, although we grant leave to proceed in forma
pauperis, we deny Baker’s motion to appoint counsel and affirm
the judgment of the district court. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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