Gregory Baker v. US

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to proceed in forma pauperis (FRAP 24) [999678087-2], granting Motion to proceed in forma pauperis (FRAP 24) [999677879-2]; denying Motion to appoint/assign counsel [999679214-2] Originating case number: 5:11-ct-03070-D Copies to all parties and the district court/agency. [999797891]. Mailed to: Gregory Baker. [15-7262]

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UNPUBLISHED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:

Before FLOYD, THACKER, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

April 19, 2016

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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Unpublished opinions are not binding precedent in this circuit.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.
began

his

term

of

incarceration

at

the

Federal

When Baker
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

Baker’s symptoms.

surgery

on

January

13,

2009

to

relieve

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

Baker’s

and

that

condition.

a

As

second
Baker’s

biopsy

condition

ordered a biopsy on May 15, 2009.
May

22,

2009,

was

fully

would

booked,

only

exacerbate

worsened,

Dr.

Ogle

Dr. Ogle’s next surgery date,
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.
on

July

21,

2009,

in

favor

amputation
procedure. 1

and
of

Baker was diagnosed with cancer

opted

to

waiting

Following further

to

forgo
be

immediate

evaluated

for

partial
a

Mohs’

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.
performed
performed
2009.

this
an

surgery

inguinal

on

pelvic

September

24,

lymphadenectomy

Dr. Inman

2009,
on

and

later

November

19,

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
negligence

proceeded
and

to

a

negligent

bench

trial

infliction

on

of

his

claims

emotional

of

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
2008,

trial,
the

penectomy

Dr.

cancer
and

Hatcher
was

testified

sufficiently

lymphadenectomy

would

that

by

advanced
have

been

early
that

a

December
partial

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

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this

opinion, and the district court overruled this objection.

Dr.

J.

that

Canter

the

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disclosed

Daniel

objected

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offered

Government

similar

testified on Baker’s behalf.

had

not

testimony,

and

Dr.

Inman

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

preponderance of the evidence supported Baker.
court

dismissed

Baker appeals.

this

motion

as

both

untimely

that

the

The district
and

meritless.

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).
succeed

on

a

supervisory

liability

claim

under

In order to
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,”

“deliberate

and

that

indifference

the

to

supervisor’s

or

tacit

response

authorization

showed
of

the

alleged offensive practices,” and caused the plaintiff’s injury.
Wilkins

v.

Montgomery,

751

F.3d

214,

226-27

(4th

(brackets and internal quotation marks omitted).
Baker

argues

that

he

sought

medical

attention

Cir.

2014)

On appeal,
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 earlyor 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
his

dismissing

argues

malpractice

constitutionally.”

that

the
claim

district

court

“without

erred

ruling

on

by
it

It appears that Baker is attempting to renew

his argument that Rule 9(j) violated his right to access the
courts

because

filing

his

it

suit

required

and

him

violated

to

the

pay
Equal

expert

fees

to

Clause

Protection

prior

by

placing burdens on medical malpractice plaintiffs that are not
placed on other personal injury plaintiffs.
any

error

in

this

regard

is

harmless

We conclude that

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.
751 F.3d at 220.

Wilkins,

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.”
Civ. P. 37(c)(1).

Fed. R.

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.
“The

Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003)).
burden

nondisclosing

of

establishing

party.”

Id.

these
The

factors

district

lies

court

with
has

the

“broad

discretion to determine whether a nondisclosure of evidence is
substantially justified or harmless.”

S. States, 318 F.3d at

597.
We
testimony

conclude
to

the

that

the

disclosed

similarity
testimony

of

of

the

undisclosed

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

denying his motion for a new trial.

court

erred

by

Baker does not challenge

the district court’s finding that this motion was untimely, but
argues

that

filing late.

his

attorney

rendered

ineffective

assistance

in

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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