Asberry v. Cate et al

Filing 134

ORDER signed by Magistrate Judge Kendall J. Newman on 11/22/13 ORDERING that Plaintiffs motion for a physical examination (ECF No. 125 ) is DENIED; and plaintiffs motion for a mental health examination (ECF No. 127 ) is DENIED. (Dillon, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

TONY ASBERRY,

12
13
14
15

No. 2: 11-cv-2462 KJM KJN P

Plaintiff,
v.

ORDER

MATTHEW CATE, et al.,
Defendants.

16
17

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

18

to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for a court ordered physical

19

examination. (ECF No. 125.) Also pending is plaintiff’s motion for a court ordered mental health

20

examination. (ECF No. 127.) For the following reasons, these motions are denied.

21

Motion for a Mental Health Examination

22

Plaintiff moves for a mental health examination of inmate Wilson pursuant to Federal

23

Rule of Civil Procedure 35(a). In this action, plaintiff alleges that he was assaulted by inmate

24

Wilson, who has mental health problems.

25

In relevant part, Federal Rule of Civil Procedure 35 provides that the court may order a

26

party whose mental condition is in controversy to submit to a mental examination. This rule also

27

states that the court has the same authority to order a party to produce for examination a person

28

who is in its custody or under its legal control. Fed. R. Civ. P. 35(a)(1).
1

1

Rule 35 does not authorize the court to order an incarcerated witness to submit to a mental

2

health examination. “The extension [of Rule 35] to provide for a nonparty in custody or under

3

control of a party is limited. It is intended to apply where a parent or guardian is suing to recover

4

for injuries to a minor. It allows the court to order that the parent or guardian makes a good faith

5

effort to produce the minor for examination.” Scharf v. U.S. Atty. Gen., 597 F.2d 1240, 1244

6

(9th Cir. 1979). Rule 35 does not authorize the court to order the California Department of

7

Corrections and Rehabilitation, a non-party, to produce an inmate witness for a mental health

8

examination. For these reasons, plaintiff’s motion for a mental health examination of inmate

9

Wilson is denied.

10

Motion for a Physical Examination

11

Plaintiff moves for a physical examination of himself pursuant to Federal Rule of Civil

12

Procedure 35(a). Plaintiff requests a physical examination on grounds that he suffered physical

13

injuries as a result of the assault by inmate Wilson, for which he has been denied medical care.

14

Federal Rule of Civil Procedure 35 does not allow for a physical examination of oneself.

15

Berg v. Prison Health Services, 376 Fed.Appx. 723, 724 (9thCir. 2010); Smith v. Carroll, 602

16

F.Supp.2d 521, 526 (D.Del. 2009) (“Rule 35, however, does not vest the court with authority to

17

appoint an expert to examine a party wishing an examination of himself.”); Lindell v. Daley,

18

2003 WL 23111624, at *1–2 (W.D. Wi. June 30, 2003) (“The rule is not intended to cover a

19

situation such as the one here, where plaintiff wishes an examination of himself. Obtaining

20

evidence to prove his case is plaintiff's responsibility, not the government’s.”); Green v. Branson,

21

108 F.3d 1296, 1304 (10th Cir. 1997) (upholding denial of inmate's Rule 35 motion where

22

purpose was to obtain medical care). Accordingly, plaintiff’s motion for a physical examination

23

is denied.

24

////

25

////

26

////

27

////

28

////
2

1

Accordingly, IT IS HEREBY ORDERED that:

2

1. Plaintiff’s motion for a physical examination (ECF No. 125) is denied; and

3

2. Plaintiff’s motion for a mental health examination (ECF No. 127) is denied.

4

Dated: November 22, 2013

5
6

as2462.ex

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3