NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 09-1920

___________

HERNAN MORENO,

Appellant

v.

UNITED STATES OF AMERICA

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 07-cv-01225)

District Judge: Honorable James F. McClure, Jr. 

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 12, 2010

Before: SMITH, FISHER and GARTH, Circuit Judges

(filed: July 14, 2010)

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OPINION

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PER CURIAM

Hernan Moreno appeals pro se from the judgment entered against him by the

United States District Court for the Middle District of Pennsylvania. For the reasons that

follow, we will affirm. 
Moreno states that he is abandoning his claims regarding the United States’ 1

alleged negligence for: (1) sending him to the eye clinic without an interpreter (he speaks

only Spanish) and (2) failing to provide him with appropriate pain medication.

2

Moreno, a federal prisoner, filed an action alleging that he was entitled to relief

under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674, due to the United States’

alleged mishandling of his medical care. As is relevant to the appeal, Moreno’s amended 1

complaint asserted that, “as a result of the inadequate care I became blind in one eye due

to the work that the government contracts out.” He explained that, in November 2004,

the medical department at the United State Penitentiary at Allenwood sent him to an

outside clinic where two doctors performed laser surgery without knowing that there was

a “stent” in his right eye, and that “the procedure burnt the stent in his eye making him

permanently blind and suffer a lot of pain.” 

The United States filed a motion to dismiss and for summary judgment on the

ground that it is not liable under the FTCA for the actions of the medical care providers

because they are independent contractors, not government employees. See United States

v. Orleans, 425 U.S. 807, 814 (1976). Moreno responded by asserting that the United

States was responsible for his injury because there was “a clear overlapping of

responsibilities and an interchanging of medical information” regarding the treatment for

his eye. The Magistrate Judge rejected this argument and agreed with the United States

that the “allegations in the amended complaint and administrative tort claim lead to the

inference that the [medical providers] are independent contractors.” The Magistrate
Moreno appears to assert that the United States was negligent in not 2

providing the outside doctors with his medical records. Because he did not raise this

claim before the District Court, we will not consider it on appeal. See Brenner v. Local

514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1298 (3d Cir. 1991). 

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Judge also noted that, even if it was not recommending dismissal based on the FTCA’s

independent contractor exception, it agreed with the United States that the claim should

be dismissed because Moreno did not file a certificate of merit and obtain an expert

witness, as is required by Pennsylvania law. After rejecting Moreno’s objections, the

District Court adopted the Magistrate Judge’s Report and Recommendation and granted

the United States’ motion for summary judgment. 

Moreno now appeals. 

2

II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. 

Under the FTCA, the United States is liable for torts as a private individual. See

28 U.S.C. § 2674. Federal prisoners may recover damages from the government for

injuries sustained during confinement as a result of negligence by government employees. 

See United States v. Muniz, 374 U.S. 150 (1963). The United States is not liable under

the FTCA unless the alleged tortfeaser is an employee of the government. See 28 U.S.C.

§§ 1346(b), 2671. Thus, suits against independent contractors are not viable. See

Orleans, 425 U.S. at 813-14; Norman v. United States, 111 F.3d 356 (3d Cir. 1997). “The

critical factor used to distinguish a federal agency employee from an independent
Because we affirm the District Court on the ground that Moreno’s claim is 3

barred by the FTCA’s independent contractor exemption, we do not consider his

argument regarding whether he should be required to file a certificate of merit.

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contractor is whether the government has the power to ‘control the detailed physical

performance of the contractor.’” Norman, 111 F.3d at 357 (citing Orleans, 425 U.S. at

814). Under this standard, “it is not necessary for the Government to continually control

all aspects of the individual’s activities, so long as it has the authority to do so given the

nature of the task.” Patterson & Wilder Constr. Co., Inc. v. United States, 226 F.3d 1269,

1274 (11th Cir. 2000). 

The District Court correctly held that the United States cannot be held liable for

any negligence attributable to the medical providers who treated Moreno. Moreno’s

amended complaint and administrative tort claim repeatedly refer to the physicians as

“contractors,” and he responded to the government’s motion by arguing only that the

medical providers and the prison officials “shared responsibility” as to his medical care.

Even if Moreno’s assertion is correct, this does not allow for the inference that the United

States had the “authority” to control the medical providers’ right to exercise independent

medical judgment. See Norman, 111 F.3d at 357; Carrillo v. United States, 5 F.3d 1302,

1304 (9th Cir. 1993) (“The circuits are unanimous in holding that a contract physician is

not an employee of the government under the FTCA.”). Accordingly, the District Court

properly dismissed this claim.3

 Based on the foregoing, we will affirm the District Court’s entry of judgment in
favor of the United States.

 

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