Starks v. Couch et al

Filing 89

ORDER denying 85 Motion for a Mental Health Examination. Signed by Magistrate Judge Clifford J. Proud on 3/16/09. (amv)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS DAVID STARKS, SR., Plaintiff, v. CHERYL COUCH, et al., Defendants. ) ) ) ) ) ) ) ) ) ORDER PROUD, Magistrate Judge: Before the court is Plaintiff's Motion for a Mental Health Examination. (Doc. 85). Defendants filed a response at Doc. 88. Plaintiff states that his mental condition is in issue, and he asks the court to order that he undergo a mental health examination pursuant to Fed.R.Civ.P. 35. Plaintiff specifies that this examination should be conducted by a an examiner "other than the defendants or one from the Illinois Department of Corrections." Plaintiff's understanding of Rule 35 is faulty. That Rule contemplates an examination of a party at the request of another party, i.e., an examination of a plaintiff at the request of a defendant. Under those circumstances, the defendant retains and pays the examining doctor, who then typically provides expert testimony on behalf of the defendant. The Rule does not provide a mechanism for what plaintiff is trying to achieve here, which is an examination for plaintiff's benefit, at someone else's expense. The fact that plaintiff is indigent and has been granted leave to proceed in forma pauperis does not entitle him to an expert witness free of cost. McNeil v. Lowney, 831 F.2d 1368, 1373 1

Civil No. 08-407-GPM-CJP

(7th Cir. 1987). The court cannot compel a doctor to examine plaintiff and/or to serve as his expert witness for free, and cannot require defendants to fund plaintiff's litigation. Id.; see also, Marozsan v. U.S., 90 F.3d 1284, 1290-1291 (7th Cir. 1996). Denying this request does not infringe plaintiff's right of access to the courts because "the right of access to the courts does not independently include a waiver of witness fees so that the indigent litigant can present his case fully to the court." McNeil v. Lowney, 831 F.2d at 1373. Upon consideration and for good cause shown, Plaintiff's Motion for a Mental Health Examination (Doc. 85) is DENIED. IT IS SO ORDERED. DATED: March 16, 2009.

s/ Clifford J. Proud CLIFFORD J. PROUD U.S. MAGISTRATE JUDGE

2