                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 17-7245


CHRISTOPHER LANCASTER,

                     Plaintiff - Appellant,

              v.

USP HAZELTON,

                     Defendant - Appellee.



Appeal from the United States District Court for the Northern District of West Virginia, at
Martinsburg. Gina M. Groh, Chief District Judge. (3:16-cv-00030-GMG-RWT)


Submitted: April 30, 2018                                         Decided: July 26, 2018


Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Christopher Lancaster, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Christopher Lancaster, a federal inmate, appeals the district court’s order adopting

the magistrate judge’s recommendation in part and denying relief on Lancaster’s complaint

pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 2671-2680

(2012). Lancaster challenges the district court’s conclusions that his assault and battery

claim is barred by the discretionary function exception to the FTCA and that he was

required to file a screening certificate of merit, pursuant to W. Va. Code § 55-7B-6(b)

(2016 & Supp. 2017), prior to filing his medical negligence claim. We affirm. *

                                             I.

       Under the FTCA, the Government has “waived sovereign immunity for claims

brought against the United States based on the negligence or wrongful acts or omissions of

its employees committed within the scope of employment, accepting liability in the same

manner and to the same extent as a private individual would have under like

circumstances.” Wood v. United States, 845 F.3d 123, 127 (4th Cir. 2017). Several

exceptions apply to this waiver, including the discretionary function exception. Id. Under

the discretionary function exception, the FTCA does not apply to claims “based upon the

exercise or performance or the failure to exercise or perform a discretionary function or

duty on the part of a federal agency or an employee of the Government, whether or not the


       *
          We disagree with the district court’s finding that Lancaster failed to file timely
objections to the magistrate judge’s report and recommendation. However, because the
district court stated that it would reach the same disposition even if the objections were
timely filed, we conclude that any error associated with the timeliness of Lancaster’s
objections is harmless.

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discretion involved be abused.” 28 U.S.C. § 2680(a). We review a district court’s decision

that the discretionary function exception applies de novo. Indem. Ins. Co. of N. Am. v.

United States, 569 F.3d 175, 179 (4th Cir. 2009).

       After reviewing the evidence, including the video surveillance of the incident in

question, we conclude that the district court correctly granted summary judgment in favor

of the Government on Lancaster’s assault and battery claim on the ground that the

correctional officers were performing a discretionary function when they used force against

Lancaster. See Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 208-09 (4th Cir. 2017)

(stating standard of review); Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009)

(explaining that, “when the jurisdictional facts and the facts central to a tort claim are

inextricably intertwined, the trial court should ordinarily assume jurisdiction and proceed

to the intertwined merits issues”).

                                                II.

       To determine liability under the FTCA, courts apply “the law of the place where the

negligent act or omission occurred.” Cibula v. United States, 664 F.3d 428, 430 (4th Cir.

2012) (brackets and internal quotation marks omitted). The district court properly used

West Virginia law to assess Lancaster’s medical negligence claim.

       Medical negligence claims in West Virginia are governed by the Medical

Professional Liability Act. Banfi v. Am. Hosp. for Rehab., 529 S.E.2d 600, 605 (W. Va.

2000); see W. Va. Code § 55-7B-3 (2016). Generally, “in medical malpractice cases[,]

negligence or want of professional skill can be proved only by expert witnesses.” Banfi,

529 S.E.2d at 605 (internal quotation marks omitted). However, failure to produce expert

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testimony “is not fatal to a plaintiff’s prima facie showing of negligence” when “lack of

care or want of skill is so gross, so as to be apparent, or the alleged breach relates to

noncomplex matters of diagnosis and treatment within the understanding of lay jurors by

resort to common knowledge and experience.” Id. at 605-06 (internal quotation marks

omitted). Whether an expert is required is within the discretion of the court, and the court’s

decision on the matter is therefore reviewed for abuse of discretion. Id. at 605.

       In light of the importance of expert testimony, West Virginia requires plaintiffs to

file a screening certificate of merit at least 30 days prior to the filing of a medical

negligence claim. W. Va. Code § 55-7B-6(b). The certificate of merit must be executed

under oath by a health care provider and state the expert’s familiarity with the standard of

care, her qualifications, and her opinion about how the standard of care was breached and

how the breach resulted in the injury or death. Id. However, recognizing that not all

medical malpractice cases require expert testimony, West Virginia provides a plaintiff with

an option if he believes that such testimony is not required in his case—he may “file a

statement specifically setting forth the basis of the alleged liability of the health care

provider in lieu of a screening certificate of merit.” W. Va. Code § 55-7B-6(c) (2016 &

Supp. 2017). “[T]his exception is not easily invoked, as a plaintiff seeking to do so must

overcome the general presumption in West Virginia medical malpractice law that

negligence or want of professional skill can be proved only by expert witnesses.” Callahan

v. Cho, 437 F. Supp. 2d 557, 562 (E.D. Va. 2006) (internal quotation marks omitted); see

Totten v. Adongay, 337 S.E.2d 2, 7 (W. Va. 1985) (describing “common knowledge

exception” as “rare”).

                                              4
       The Supreme Court of Appeals of West Virginia has clarified that “[t]he

requirement of a pre-suit notice of claim and screening certificate of merit is not intended

to restrict or deny citizens’ access to the courts.” Hinchman v. Gillette, 618 S.E.2d 387,

394 (W. Va. 2005). Rather, “in determining whether a notice of claim and certificate are

legally sufficient, a reviewing court should apply [§ 55-7B-6] in light of the statutory

purposes of preventing the making and filing of frivolous medical malpractice claims and

lawsuits; and promoting the pre-suit resolution of non-frivolous medical malpractice

claims.” Id. at 395. The appropriate inquiry is whether the plaintiff “has demonstrated a

good faith and reasonable effort to further the statutory purposes.” Id.

       We conclude that the district court did not abuse its discretion in determining that a

medical expert is required to prove Lancaster’s medical negligence claim. We agree that

Lancaster did not allege that he was denied medical care altogether but complained that he

did not receive proper medical care for his injuries. The proper course of treatment for

injuries such as head trauma is not within the common knowledge of a lay person. We also

agree with the court’s conclusion that the good faith exception does not apply. Here,

Lancaster submitted a document labeled “Certificate of Merit” (in which he argued no such

certificate was required) more than one year after this case was filed. See id. (“[T]here

would seem to be no sense or utility in allowing amendment of a pre-suit notice and

certificate after suit is filed.”).   Notably, the court properly dismissed the medical

negligence claim without prejudice. See Cline v. Kresa-Reahl, 728 S.E.2d 87, 98 (W. Va.

2012) (explaining that, if court undertakes good faith analysis and finds plaintiff’s efforts



                                             5
to promote the statutory purposes wanting, it may dismiss the complaint without prejudice

to ensure that it does not restrict access to court).

                                               III.

       Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

                                                                             AFFIRMED




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