Massie v. Amaya et al
Filing
51
ORDER signed by Magistrate Judge Kendall J. Newman on 9/18/2014 DENYING plaintiff's 42 request for examination. (Yin, K)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
SCOTT MASSIE,
12
Plaintiff,
13
14
No. 2:12-cv-0525 KJN P
v.
ORDER
ARIK AMAYA, et al.,
15
Defendants.
16
Plaintiff is a state prisoner proceeding without counsel. Appended to plaintiff’s pretrial
17
18
statement was a document entitled “Federal Rules of Procedure Rule 36(a) Physical & Mental
19
Examinations.” (ECF No. 43 at 2.) Plaintiff recites the language of Rule 35(a), and claims that
20
“the court has the same authority to order a party to produce for examination a person who is in
21
his custody under its legal control.” (ECF No. 43 at 2.) Plaintiff claims that some of the injuries
22
sustained at the hands of defendants resulted in permanent injuries, and such injuries “need to be
23
verified by a doctor.” (Id.) Plaintiff appears to claim that any report from such examination
24
would be submitted at trial to prove that defendants used excessive force with great bodily injury
25
to violate plaintiff’s Eighth Amendment rights. (Id.)
Rule 35(a) of the Federal Rules of Civil Procedure provides as follows:
26
27
////
28
////
1
1
(a) Order for an Examination.
2
(1) In General. The court where the action is pending may order a
party whose mental or physical condition--including blood group-is in controversy to submit to a physical or mental examination by a
suitably licensed or certified examiner. The court has the same
authority to order a party to produce for examination a person who
is in its custody or under its legal control.
3
4
5
(2) Motion and Notice; Contents of the Order. The order:
6
(A) may be made only on motion for good cause and on notice
to all parties and the person to be examined; and
7
8
(B) must specify the time, place, manner, conditions, and scope
of the examination, as well as the person or persons who will
perform it.
9
10
11
Fed. R. Civ. P. 35(a).
First, plaintiff’s filing does not comport with Rule 35(a)(2). Plaintiff’s filing is not filed
12
as a motion, and does not specify the type of examination he requests, or the injuries he claims
13
are permanent. In addition, plaintiff fails to identify the doctor from whom he seeks examination.
14
Finally, plaintiff does not allege facts demonstrating good cause for either a physical or mental
15
examination. Schlagenhauf v. Holder, 379 U.S. 104, 114-22 (1964).
16
Second, to prevail in the instant action, plaintiff must demonstrate that defendants used
17
unreasonable force in violation of the Fourth Amendment. In order to substantiate his damages,
18
plaintiff may submit as evidence authenticated medical records from his treating physicians.
19
Moreover, as set forth in the accompanying pretrial order, plaintiff may call as witnesses any
20
witness designated by defendants. In addition, plaintiff will be allowed to cross-examine any
21
witnesses called by defendants. Thus, it does not appear that an independent medical or physical
22
examination is required.
23
Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for examination (ECF
24
No. 42 at 2) is denied.
25
Dated: September 18, 2014
26
27
mass0525.r35
28
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?