Maxton v. USA et al

Filing 185

ORDER by Magistrate Judge Nina Y. Wang on 3/15/16. Plaintiff's Motion for Order for Physical and Mental Examination 182 is DENIED.(bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00383-WYD-NYW
THERON JOHNNY MAXTON, #85599-071,
Plaintiff,
v.
UNITED STATES OF AMERICA,
BOP DIRECTOR, Washington, D.C.,
T.K. COZZA-RHODES, Warden F.C.I.,
CHARLES DANIEL, Warden F.C.I.,
S. COLLINS, Health Service, U.S.P., and
LT. ANTHONY, U.S.P., Florence,
Defendants.

ORDER
Magistrate Judge Nina Y. Wang
This matter comes before the court on Plaintiff’s Motion for Order for Physical and
Mental Examination, filed on February 11, 2016 [#182], which was referred to this court
pursuant to 28 U.S.C. § 636(b)(1), the Order of Reference dated April 6, 2014 [#14], the
Reassignment dated February 18, 2015 [#137], and the Memorandum dated February 12, 2016
[#183]. Defendants responded to Plaintiff’s Motion on March 7, 2016 [#184]. This court has
reviewed the entire case file as well as the applicable case law, and has determined that further
reply or oral argument would not materially assist the court in resolving the issue at hand.
Accordingly, pursuant to D.C.COLO.LCivR 7.1(d), the court hereby DENIES Plaintiff’s Motion
for Order for Physical and Mental Examination.

ANALYSIS
The factual background of this case has been discussed in numerous court orders, and
will only be recounted here to provide a sufficient basis to understand the court’s ruling herein.
Mr. Maxton originally filed this action on February 13, 2012, alleging that he was assaulted and
beaten while in custody at the United States Penitentiary in Florence, Colorado. [#1]. While Mr.
Maxton alleges that he sustained serious injuries associated with the beating, he does not allege
that the medical condition that he is currently complaining of, i.e., prostate cancer, is a result of
the underlying incident. As this court noted in its previous order, to the extent that Mr. Maxton
seeks to amend his operative pleading to include complaints regarding his current medical
condition, this court respectfully recommended that such amendment not be permitted as it
would allow Plaintiff to circumvent the requirements of the Prison Litigation Reform Act,
including exhaustion of administrative remedies and the application of the “three strikes” rule to
Mr. Maxton. See [#180].
Through the instant Motion for Order of Physical and Mental Examination, Plaintiff now
seeks an independent medical examination under Rule 35 of the Federal Rules of Civil
Procedure. [#182]. Defendants again argue that Mr. Maxton is not entitled to an independent
medical examination under Rule 35 because the “the issue that Plaintiff raises in his motion is
not germane to the underlying claims.” [#184]. Defendants further argue that “Plaintiff fails to
cite any legal authority that would permit this Court to order that Plaintiff undergo an IME
pursuant to Fed. R. Civ. P. 35. That rule pertains to a request by an opposing party to compel a
medical examination of another party.” [Id.].

While this court liberally interprets Mr. Maxton’s papers because he is proceeding pro se,
“Plaintiff’s pro se status does not relieve him of the duty to comply with the various rules and
procedures governing litigants and counsel or the requirements of the substantive law.” See
Dodson v. Bd. of Cty. Comm’rs, 878 F. Supp. 2d 1227, 1236 (D. Colo. 2012). Rule 35 of the
Federal Rules of Civil Procedure provides that a court 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. Fed. R. Civ. P. 35(a). Generally, Rule 35 applies to compelled
examinations of a party usually employed by an opposing party, rather than voluntary
examinations. See Silverstein v. Federal Bureau of Prisons, No. 07-cv-02471-PAB-KMT, 2009
WL 1451684, at *4 (D. Colo. May 20, 2009). Indeed, the weight of the authority from courts
across the country indicates that Rule 35 “does not vest the court with authority to appoint an
expert to examine a party wishing an examination of himself.” See Brown v. United States, 74 F.
App’x 611, 614 (7th Cir. 2003); McKenzie v. Nelson Coleman Correctional Ctr., Civil Action
No. 11-0268, 2012 WL 3779129, at *2-*3 (D. La. Aug. 31, 2012) (collecting cases). Nor does
Mr. Maxton address who will pay for the costs of such an examination. Mr. Maxton has not
shown any financial ability to pay for such a medical examination on his own, and given his in
forma pauperis status, it seems unlikely that he has the financial means within his inmate
account to cover the cost of an independent medical examination. Neither Rule 35 nor 28 U.S.C.
§ 1915 provide this court any authority to require Defendants or the court to pay for an
independent medical examination. See Savajian v. Milyard, No. 09-cv-00354-CMA-BNB, 2009
WL 5126581, at *1 (D. Colo. Dec. 17, 2009); Hooper v. Tulsa Cty. Sheriff Dept., 113 F.3d 1246,
1997 WL 295424, at *2 (10th Cir. June 4, 1997) (holding that 28 U.S.C. § 1915 does not provide

for payment of any costs or fees that are not expressly provided for by Congress); McKenzie,
2012 WL 3779129, at *3. Mr. Maxton has not provided any authority to the contrary.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that Plaintiff’s Motion for Order for
Physical and Mental Examination [#182] is DENIED.

DATED March 15, 2016

BY THE COURT:

s/ Nina Y. Wang
Nina Y. Wang
United States Magistrate Judge