Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-15-2006

Balter v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3687




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"Balter v. USA" (2006). 2006 Decisions. Paper 1579.
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                                                  NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      NO. 04-3687
                                   ________________

                                 RICHARD BALTER,
                                          Appellant

                                              v.

        UNITED STATES OF AMERICA; FEDERAL BUREAU OF PRISONS;
              JAE H. SHIM, Clinical Director, Health Services Unit;
           MAXIMO R. VALESCO, Medical Officer, Health Services Unit;
           DANIEL O. ROMERO, Medical Officer, Health Services Unit;
               ARNOLD T. REYES, Health Services Administrator

                                    _____________

                    On Appeal From the United States District Court
                         For the Middle District of Pennsylvania
                              (D.C. Civ. No. 01-cv-01944)
                   District Judge: Honorable Judge James M. Munley
                     _____________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 6, 2006

            BEFORE: ROTH, RENDELL and AMBRO, CIRCUIT JUDGES

                               (Filed: February 15, 2006)
                                     _____________

                                       OPINION
                                    ______________

PER CURIAM

      Appellant, Richard Balter, appeals from an order entered by the United States

District Court for the Middle District of Pennsylvania dismissing his complaint. The facts
and procedural history of this case are well known to the parties. It is thus not necessary

for us to restate them in great detail here. Balter, a federal prisoner, filed the underlying

complaint pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of

Narcotics, 

(1971), and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §

2671, et seq., against the following defendants: the United States of America; the Federal

Bureau of Prisons; Jae H. Shim, Clinical Director of the Health Services Unit; Maximo R.

Valesco, Medical Officer; Daniel O. Romero, Medical Officer; and Arnold T. Reyes,

Health Services Administrator. Balter essentially asserts that the defendants failed to

provide him with timely and adequate medical treatment for an eye condition, and that the

delayed treatment which he did receive resulted in the loss of vision in his right eye.

       We have jurisdiction over the instant appeal pursuant to 28 U.S.C. § 1291, and

exercise plenary review over a District Court’s order granting defendants’ motion to

dismiss the complaint and for summary judgment. See Debiec v. Cabot Corp., 

, 128 n.3 (3d Cir. 2003); Broselow v. Fisher, 

, 607 (3d Cir. 2003). After

careful review of the record, we find that dismissal was proper and we will thus affirm the

judgment of the District Court.

       The District Court properly granted defendants’ motion to dismiss with respect to

defendant Reyes because Reyes had no direct involvement in Balter’s medical treatment.

See Ruiz Rivera v. Riley, 

, 28 (1st Cir. 2000)(citing cases holding that

respondeat superior is not a viable theory of Bivens liability); cf. Rode v. Dellarciprete,

(3d Cir. 1988) (no respondeat superior liability in § 1983 cases). As for

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Balter’s Eighth Amendment claim against the remaining defendants, summary judgment

was appropriate insofar as Balter failed to demonstrate that the defendants were

deliberately indifferent to his eye condition. See Estelle v. Gamble, 

(1976).

In fact, a review of the record shows that Balter was seen on numerous occasions by

prison doctors, outside ophthalmologists, and a variety of specialists. As the District

Court concluded, Balter’s disagreement with the prison doctors regarding the type of

treatment he should have been given does not amount to an Eighth Amendment violation.

See White v. Napoleon, 

(3d Cir. 1990). Summary judgment was thus

properly granted with respect to the merits of Balter’s Eighth Amendment claim and, we

would note, Balter does not take issue with the District Court’s disposition of this claim

on appeal.

       Finally, we agree with the District Court that Balter’s FTCA claim was barred by

the statute of limitations. Initially, we reject appellant’s argument that the District Court

committed reversible error in considering defendants’ argument regarding the timeliness

of his FTCA claim since it was not raised in their initial motion to dismiss the complaint

and for summary judgment. As we have noted in the past, affirmative defenses (including

the statute of limitations) are not waived if raised at a “pragmatically sufficient time” with

no prejudice to the plaintiff. See Eddy v. VI Water & Power Authority, 

,

209 (3d Cir.2001), citing Charpentier v. Godsil, 

, 864 (3d Cir. 1991). Here,

defendants raised the statute of limitations defense in their objections to the Magistrate

Judge’s first Report and Recommendation, and again on remand from the District Court

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in their answer and second motion to dismiss and for summary judgment. Balter was

afforded an opportunity to meet that defense and to present his arguments to both the

Magistrate Judge and the District Court. Given these circumstances, we cannot agree

with appellant’s contention that the District Court erred in considering the limitations

defense.

       That having been said, Balter was required to file an administrative claim with the

appropriate federal agency within two years after his claim accrued. See 28 U.S.C. §

2401(b). The District Court correctly concluded that Balter knew of both the existence

and the probable cause of his injury in August 1997 because, at that time, two eye

specialists had allegedly told him that the delay in seeking treatment had adversely

affected his prognosis. In his complaint, Balter claimed the delay was caused by the

prison medical staff at USP-Lewisburg. Moreover, in his September 26, 2000

administrative complaint Balter listed the “incident date” as August 29, 1997. While

Balter argues that the incident was ongoing, we agree with the District Court that the

events which occurred subsequent to August 1997 did not allow him to delay in bringing

suit until after his treatment was complete. See Tyminski v. United States, 

(3d Cir. 1973). Balter thus had until August 1999 to file his administrative tort claim.

The claim he filed on September 26, 2000 was clearly untimely.

       Accordingly, for the reasons stated, we will affirm the District Court’s judgment.




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