                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).



                                                4
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)
                                        6
      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.



                                            7
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

                                             8
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.

                                        9
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




                                            10
presented in the materials before this court and argument would

not aid the decisional process.

                                                       AFFIRMED




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