Herrera v. Rouch

Filing 33

ORDER DENYING with prejudice 28 Motion for Medical Examination, signed by Magistrate Judge Michael J. Seng on 12/28/2013. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERTO HERRERA,

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Plaintiff,

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ORDER
DENYING
MOTION
MEDICAL EXAMINATION

FOR

v.

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CASE NO. 1:13-cv-00289-LJO-MJS

ROUCH,

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(ECF NO. 28)
Defendant.

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Plaintiff Roberto Herrera is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) The

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operative pleading is Plaintiff’s Second Amended Complaint, filed August 28, 2013 (ECF

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No. 17), against Defendant Rouch for deliberate indifference to Plaintiff’s serious medical

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need in violation of the Eighth Amendment.

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On December 6, 2013, Plaintiff filed a motion seeking a medical examination
pursuant to Federal Rule of Civil Procedure 35. Rule 35 provides in relevant part:
The court where the action is pending may order a party
whose mental or physical condition . . . is in controversy to
submit to a physical or mental examination by a suitably
licensed or certified examiner.
Here, Plaintiff seeks an order for his own examination. Rule 35 allows a movant

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to request examination of an opposing party whose mental or physical condition is in
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controversy, not for a party to request his own examination to support his claims. Berg

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v. Prison Health Services, 376 F. App’x. 723, 724 (9th Cir. 2010), cert. denied, 131 S.Ct.

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323 (Oct. 4, 2010) (“Rule 35 does not allow for a physical examination of oneself”).
Accordingly, Plaintiff’s motion seeking a medical examination (ECF No. 28) is

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DENIED, with prejudice.

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IT IS SO ORDERED.

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Dated:

December 28, 2013

/s/

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UNITED STATES MAGISTRATE JUDGE
DEAC _Signature- END:

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Michael J. Seng

ci4d6

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