Tuttamore v. Allred et al

Filing 169

ORDER denying 114 Verified Motion for a Physical Examination. By Magistrate Judge Kathleen M. Tafoya on 10/4/12. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 11–cv–01522–MSK–KMT

TIMOTHY S. TUTTAMORE,
Plaintiff,
v.
DR. ALLRED,
A. OSAGIE,
ADX WARDEN DAVIS,
M. SMITH, and
UNKNOWN UTILIZATION COMMITTEE MEMBERS, all in their official and individual
capacities,
Defendants.

ORDER

This matter is before the court on Plaintiff’s “‘Verified’ Motion for a Physical
Examination.” (Doc. No. 114, filed Apr. 6, 2012.) In his Motion, Plaintiff seeks a physical
examination pursuant to Federal Rule of Civil Procedure 35 to see if he is still fertile and to
conduct a body fat analysis in order to “show cause to some of the possible injuries.” (See Mot.
at 3.) For the following reasons, Plaintiff’s Motion is DENIED.
Federal Rule of Civil Procedure 35 empowers a court to “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.” Fed. R. Civ. P. 35(a)(1). However, it is well settled that

this Rule does not allow a party, even an indigent prisoner, to seek his own examination. Brown
v. United States, 74 F. App’x 611, 614 (7th Cir. 2003); Smith v. Carroll, 602 F. Supp. 2d 521,
525-26 (D. Del. 2009); Savajian v. Milyard, No. 09-cv-00354-CMA-BNB, at *1 (D. Colo. Dec.
17, 2009) (“although the plaintiff states that he is seeking an independent medical examination
pursuant to Fed. R. Civ. P. 35(a), he is actually seeking a cost-free medical examination which
he hopes will support his claims . . . . Rule 35 was not designed for this purpose.”). See also
McKenzie v. Nelson Coleman Corr. Ctr., No. 11-0268, 2012 WL 3779129, at *2-3 (E.D. La.
Aug. 31, 2012) (collecting cases). “Instead, under appropriate circumstances, it allows the court
to order a party to submit to a physical examination at the request of an opposing party.” Smith,
602 F. Supp. 2d at 526; Brown, 74 F. App’x at 614. Here, it is clear that Plaintiff seeks a costfree medical examination that he believes will support his claims; as outlined above, it is well
settled that Rule 35 is not available for this purpose.1
Moreover, the court notes that Plaintiff does not indicate who will bear the cost for the
proposed examinations. “[N]either 28 U.S.C. § 1915 or Fed. R. Civ. P. 35 authorizes the court to
pay for tests, consultations, or examinations by private physicians.” McKenzie, 2012 WL

1

The court would not reach a different result if, rather than Rule 35, Plaintiff had invoked
Federal Rule of Evidence 706. The latter rule provides that, “[o]n a party’s motion or on its
own, the court may order the parties to show cause why expert witnesses should not be
appointed and may ask the parties to submit nominations. The court may appoint any expert that
the parties agree on and any of its own choosing.” Fed. R. Evid. 706(b). “The purpose of Rule
706 is to assist the factfinding of the court, not to benefit a particular party.” Lindsay v. Lewis,
1:11CV67, 2012 WL 1155744, at *2 (M.D.N.C. Apr. 6, 2012) (quoting Paiva v. Bansal, No. 10179 S, 2011 WL 155425, at *1 (D.R.I. Apr. 27, 2011)). Plaintiff’s motion makes clear that he
seeks an expert medical evaluation for his own benefit, and not that of the court. See Hannah v.
United States, 523 F.3d 597, 600 (5th Cir. 2008).
2

3779129, at *3 (citations omitted). Ultimately, no civil litigant, even an indigent one, has the
right to such aid. Brown, 74 F. App’x at 614-15; Smith, 602 F. Supp. 2d at 526.
Therefore, for the foregoing reasons, it is
ORDERED that Plaintiff’s “‘Verified’ Motion for a Physical Examination” (Doc. No.
114) is DENIED.
Dated this 4th day of October, 2012.

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