Watson v. Dodd et al

Filing 81

ORDER DENYING 66 Motion to Compel and DENYING 80 Motion for Hearing. Signed by Magistrate Judge Donald G. Wilkerson on 7/25/2018. (jkb2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KENNETH WATSON,
Plaintiff,
v.
C/O DODD, C/O MCBRIDE, LT.
JACKSON, C/O ANDERTON, C/O
NALLEY, NURSE MCCAIN, C/O
APARICIO, MICHAEL SANDERS,
MAJOR PLOTTS, JASON GARNETT,
and JOHN R. BALDWIN,
Defendants.

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Case No. 3:16-cv-01217-NJR-DGW

ORDER
WILKERSON, Magistrate Judge:
Pending before the Court are Defendant McCain’s Motion for Rule 35 Physical
Examination of Plaintiff (Doc. 66) and Motion for Hearing (Doc. 80). For the reasons set forth
below, the Motions are DENIED.
BACKGROUND
Plaintiff Kenneth Watson filed this action pursuant to 42 U.S.C. § 1983 alleging he was
attacked and sexually assaulted by defendant corrections officers Dodd and McBride, and his
efforts at obtaining medical care and reporting the incident were prevented or ignored by the other
defendants (Doc. 9, p. 1). An Amended Complaint was filed on January 2, 2018, containing the
following claims:
Count 1 - Cruel and unusual punishment in violation of the Eighth Amendment
against Defendants McBride and Dodd for physically, verbally and sexually
assaulting Plaintiff on July 17, 2016;
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Count 2 - Failure to Protect or Intervene and Verbal Abuse in violation of the
Eighth Amendment against Jackson, Plott, Anderton and Nalley when Defendants
failed to intervene during the assault on Plaintiff by Defendants McBride and Dodd
and when Jackson and Plott additionally verbally abused and threatened Plaintiff
during the assault;
Count 3 - Deliberate indifference to Plaintiff’s medical needs in violation of the
Eighth Amendment when Defendants McBride, Dodd, Jackson, Plott, Nalley,
Anderton, Aparicio, Saunders, Garnett and McCain denied Plaintiff medical care
and a PREA referral;
Count 4 - Defendants McBride, Dodd, Jackson, Plott, Nalley, Anderton, Aparicio,
Saunders, Garnett and McCain retaliated against Plaintiff for his filing of
grievances in violation of the First Amendment;
Count 5 - Conspiracy in violation of the First and Eighth Amendments against all
Defendants;
Count 6 - Intentional Infliction of Emotional Distress under state law against all
Defendants;
Count 7 - Assault and Batter and Conspiracy to commit Assault and Battery
against McBride and Dodd;
(Doc. 50).
During the assault Watson stated Dodd grabbed his penis and testicles and squeezed them
“as hard as he could” (Doc. 50, p. 10). As a result of Defendants’ actions, Watson has stated he
suffered severe injuries (Doc. 50, pp. 22), including ongoing pain in his neck and right testicle, as
well as a scar on his penis and pain when urinating (Doc. 68, p. 2).
DISCUSSION
Defendant McCain’s Motion for Rule 35 Physical Examination seeks an examination for
the sole purpose of photographing the scar on Watson’s penis (Doc. 66, p. 3). McCain alleges she
needs the photograph to “verify” the existence of the scar and because the scar is at issue for
damages (Doc. 66, p. 3).
Rule 35 of the Federal Rules of Civil Procedure controls when the Court may enter an order

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for a mental or physical examination. Specifically:
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.
FED. R. CIV. P. 35(a)(1).
The order may be made only on motion for good cause and on notice to all parties
and the person being examined.
FED. R. CIV. P. 35(a)(2)(A).
The Supreme Court has long held a trial judge must determine on a case-by-case basis
whether the party requesting the examination has adequately demonstrated both the “in
controversy” and “good cause” requirements of the rule. Schlangenhauf v. Holder, 379 U.S. 104,
118-19 (1964). Watson does not appear to contest that his scar qualifies as being in controversy,
therefore the Court considers that issue conceded.
At issue, however, is whether McCain has adequately shown good cause for photographing
the scar. The Supreme Court has stated that good cause for an examination requires a greater
showing of need than under the discovery rules. Id. at 118. Thus, mere relevance is insufficient to
show good cause. Id. Further, the “ability of the movant to obtain the desired information by other
means” is relevant to whether good cause for the examination exists. Id.
Here, McCain has failed to show good cause for the requested photograph. Watson’s claim
against McCain is that she failed to examine his injuries, including the injury to his penis (Doc. 50,
p. 19). 1 As a result, whether or not a scar exists is irrelevant to either proving or defending against
the Eighth Amendment claim against McCain. While the existence of the scar may be relevant to
damages, the Court does not see how a photograph of the scar is necessary. As Watson points out,

1

A second claim is made against McCain relating to Retaliation (Doc. 50, p. 20). However, because the existence or
extent of scarring is not relevant to a retaliation claim, the Court does not consider it for purposes of this motion.

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Rule 35 allows for the Court to order an examination and report, which would be required to “set
out in detail the examiner’s findings.” FED. R. CIV. P. 35(b)(2). 2 Thus, the existence of any scar as
well as a description can be obtained for purposes of assessing damages without a photograph. The
Court finds because the desired information is available through other means, McCain has failed to
show good cause for the requested photograph. 3
Finally, McCain requested a hearing before this Court on her Motion for Rule 35 Physical
Examination (Doc. 80). McCain argues a hearing is proper to allow the parties to “explore the best
way to accomplish the collection” of the evidence. The Court disagrees. The only motion before
the Court is a request to photograph Watson’s scar. Should the parties be unable to come to an
agreement regarding an examination and report under Rule 35, they may contact the Court to
schedule a discovery dispute conference.
CONCLUSION
For the foregoing reasons, Defendant McCain’s Motion for Rule 35 Physical Examination
of Plaintiff (Doc. 66) and Motion for Hearing (Doc. 80) are DENIED.
So Ordered.
DATED: July 25, 2018

DONALD G. WILKERSON
United States Magistrate Judge

2

The Court is unpersuaded by McCain’s argument that “the jury should not be asked to weigh the credibility of
Plaintiff versus the credibility of an independent medical examiner.” Juries are regularly asked to perform exactly that
function.
3
The Court is also concerned by McCain’s request that the photograph be taken by the “internal investigation team”
at the prison where Watson is an inmate (Doc. 66, p. 2). On its face, the Court does not see how the internal
investigation team would qualify as a “suitably licensed or certified examiner” as required by Fed. R. Civ. P. 35(a)(1).

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