Mitchell v. Richard Rocha et al

Filing 46

ORDER re 31 Granting Defendant's Request for Mental Exam. Signed by Magistrate Judge Howard R. Lloyd on 10/27/2011. (hrllc2, COURT STAFF) (Filed on 10/27/2011)

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*E-FILED 10-27-2011*

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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For the Northern District of California

United States District Court

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No. C10-03424 EJD (HRL)

CAROLYN A. MITCHELL,

ORDER GRANTING DEFENDANT’S
REQUEST FOR MENTAL EXAM

Plaintiff,
v.

[Re: Docket No. 31]
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RICHARD ROCHA and DOES 1-15,
Defendants.
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This civil rights action arises out of an incident between plaintiff Carolyn Mitchell and

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defendant Richard Rocha at a state park in Aptos, California. Mitchell claims that defendant

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violated her constitutional rights to be free from excessive force, unlawful arrest and

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incarceration. She also asserts related state law claims for intentional/negligent infliction of

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emotional distress; assault and battery; and false arrest/false imprisonment.

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Pursuant to Fed. R. Civ. P. 35, defendant moves for an order compelling plaintiff to

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submit to a mental examination. Plaintiff evidently refuses to stipulate to an examination.

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However, this court is told that she also did not participate in the preparation of a Discovery

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Dispute Joint Report required by the undersigned’s Standing Order re Civil Discovery Disputes.

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Nor has she responded to defendant’s report re this discovery dispute. The matter is deemed

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suitable for determination without oral argument. Civ. L.R. 7-1(b). Upon consideration of

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defendant’s report, defendant’s request is granted.

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For good cause shown, the court “may order a party whose mental or physical condition

certified examiner.” FED. R. CIV. P. 35(a)(1); Ford v. Contra Costa County, 179 F.R.D. 579

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(N.D. Cal. 1998) (“It is well established that a party seeking to compel the psychiatric

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evaluation of an adverse party must demonstrate that (1) the adverse party’s mental condition is

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in controversy and (2) there is good cause for the examination.”). The party moving to compel

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the examination bears the burden of establishing the “in controversy” and “good cause”

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requirements. Schlagenhauf v. Holder, 379 U.S. 104, 118, 85 S. Ct. 234, 13 L.Ed.2d 152

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(1964). “Most cases in which courts have ordered mental examinations pursuant to Rule 35(a)

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involve something more than just a claim of emotional distress.” Turner v. Imperial Stores, 161

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For the Northern District of California

. . . is in controversy to submit to a physical or mental examination by a suitably licensed or

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United States District Court

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F.R.D. 89, 93 (S.D. Cal. 1995). Cases suggest that a plaintiff will be ordered to undergo a

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mental examination where, in addition to a claim of emotional distress, the case involves (1) a

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claim for intentional or negligent infliction of emotional distress; (2) an allegation of a specific

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mental or psychiatric injury or disorder; (3) a claim of unusually severe distress; (4) the

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plaintiff’s offer of expert testimony to support a claim of emotional distress; and/or (5)

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plaintiff’s concession that her mental condition is “in controversy” within the meaning of Fed.

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R. Civ. P. 35. Id. at 95; see also Ford, 179 F.R.D. at 580 (same).

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Here, Mitchell apparently will not concede that her mental condition is “in controversy.”

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And, it is not apparent that she alleges a specific mental or psychiatric disorder. But, the

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allegations of her complaint indicate that she is seeking damages for more than mere “garden

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variety” distress. She asserts a claim for negligent/intentional infliction of emotional distress.

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She expressly alleges “severe” emotional distress and mental anguish; claims that she has been

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“injured in mind”; asserts that she has been “prevented from attending to her usual business”;

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says that she suffers “great mental, physical and nervous pain”; states that she has incurred and

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will continue to incur expenses for “medical treatment and psychological counseling”; and

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alleges that her claimed injuries “will result in some permanent disability to her.” (See Dkt. No.

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9, First Amended Complaint).

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On the record presented, the court finds that plaintiff has put her mental condition “in

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controversy” and that good cause therefore exists for a mental examination. As discussed

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above, plaintiff did not address the logistics of the exam proposed by defendant. Accordingly,

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defendant’s request will be granted, largely as proposed by defendant. However, the court will

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give plaintiff the option of submitting to the examination either at defense counsel’s offices or

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at Dr. Keram’s office. Additionally, the court has modified defendant’s proposal to clarify that

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no one may accompany plaintiff while the actual examination and tests are being conducted

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(i.e., if plaintiff needs or wants someone to accompany her to the testing location, that is

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permissible).
Based on the foregoing, IT IS ORDERED THAT:

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For the Northern District of California

United States District Court

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1.

Plaintiff shall appear for and submit to a psychiatric mental examination to be

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conducted by Dr. Emily A. Keram, represented to the court to be a duly licensed

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psychiatrist specializing in forensic psychiatry. Plaintiff shall have the option of

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submitting to the examination either at defense counsel’s office or at Dr.

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Keram’s office. The examination shall be conducted at a date and time mutually

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agreed upon by the parties, but shall be conducted no later than November 30,

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2011.

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2.

The examination shall consist of those procedures and diagnostic tests generally

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accepted by the medical community as reasonably necessary to accurately

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evaluate and clearly delineate the nature, severity, or extent of plaintiff’s alleged

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psychiatric and emotional injuries. These tests shall be in no way painful,

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intrusive, or protracted and shall last only so long as reasonably necessary.

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3.

No person may accompany plaintiff while the actual examination and tests are
being conducted.

Dated: October 27, 2011

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HOWARD R. LLOYD
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UNITED STATES MAGISTRATE JUDGE

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5:10-cv-03424-EJD Notice has been electronically mailed to:

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Harry T. (Chip) Gower , III

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Kathleen Wells

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Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

[e-mail], [e-mail]

[e-mail]

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For the Northern District of California

United States District Court

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