Tilei v. Wan et al

Filing 104

ORDER DENYING 103 Motion for a physical and mental examination under Rule 35, signed by Magistrate Judge Gary S. Austin on 7/12/2010. (Marrujo, C)

(PC) Tilei v. Wan et al

Doc. 104

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PUNAOFO TSUGITO TILEI, ) ) Plaintiff, ) ) vs. ) ) T. WAN, et al., ) ) ) ) Defendants. ) ) ____________________________________) I. BACKGROUND Panaofo Tsugito Tilei ("plaintiff") is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. On June 4, 2010, plaintiff filed a motion for the court to order a physical and mental examination of plaintiff under Rule 35 of the Federal Rules of Civil Procedure. (Doc. 103.) II. RULE 35 - PHYSICAL AND MENTAL EXAMINATIONS Under Rule 35, the court may order a party "whose mental or physical condition . . . is in controversy" to submit to a physical or mental examination. Fed.R.Civ.P 35(a)(1). Plaintiff requests a physical and mental examination, alleging that he is suffering from a myriad of serious health problems caused by prison officials where he is incarcerated. Plaintiff submits a copy of a civil complaint filed 1 1:06-cv-00776-OWW-GSA-PC UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

ORDER DENYING PLAINTIFF'S MOTION FOR A PHYSICAL AND MENTAL EXAMINATION (Doc. 103.)

Dockets.Justia.com

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by plaintiff in case 1:10-cv-00069-LJO-SKO-PC on January 13, 2010, in which he claims defendants violated his rights to adequate medical care. Plaintiff also refers the court to the motion for extension of time he filed in the present action on June 3, 2010, in which he complains of multiple health problems. The present action proceeds only on plaintiff's claims for retaliation and for violation of his rights to due process, and plaintiff's mental or physical condition is not in controversy in this action.1 For this reason, plaintiff's motion shall be denied. III. CONCLUSION Based on the foregoing, IT IS HEREBY ORDERED that plaintiff's motion for a physical and mental examination under Rule 35 is DENIED.

IT IS SO ORDERED. Dated: 6i0kij

July 12, 2010

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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1

A ll other claims were dismissed from this action on July 8, 2008. (Doc. 26.)

2