Waterman v. Cherokee County Jail et al

Filing 123

MEMORANDUM AND ORDER granting in part 115 Motion for Order. Signed by Magistrate Judge Kenneth G. Gale on 8/6/2020. Mailed to pro se party Brian Waterman by regular mail. (df)

Case 5:18-cv-03092-JWB-KGG Document 123 Filed 08/06/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRIAN MICHAEL WATERMAN,

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Plaintiff,
vs.
DAVID GROVES, et al.,
Defendants.

Case No. 18-3092-JWB-KGG

MEMORANDUM & ORDER GRANTING IN PART
MOTION FOR RULE 35 EXAM
Plaintiff, who is a prisoner in the Sedgwick County Jail, brings this civil
rights action pro se against certain Defendants associated with the Cherokee
County Jail, where he is (and was previously) incarcerated. Plaintiff has filed a
motion requesting a medical examination of himself pursuant to Fed.R.Civ.P. 35.
(See Doc. 115.) For the reasons set forth below, the motion is GRANTED in
part.
A.

Background.
These two consolidated cases were filed by Plaintiff, pro se, in 2018 and

consolidated in October of that year. The Complaints allege violations by persons
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connected with the Cherokee County Jail, in which Plaintiff was confined pending
a criminal trial. The litigation has, thus far, consisted of a never-ending series of
motions.
In regard to the present motion, Plaintiff contends that Defendants “have
claimed … that Plaintiff was purging his food up twice a day for about a year to
drop weight, for a medical diet.” (Doc. 115, at 1.) Plaintiff denies this and
contends that Defendants have not provided any medical evidence to support these
claims. (Id.) Plaintiff continues that it “would be medically impossible to hide
such a medical condition from an oral surgeon” because stomach acid would
damage the enamel on his teeth. (Id.) As such, Plaintiff seeks a medical
examination of himself pursuant to Fed.R.Civ.P. 35. Plaintiff suggests Dr.
Matthew C. Lowe, located in Pittsburg, Kansas, at a time to be coordinated by Dr.
Lowe and Defendants. (Id., at 2.)
B.

Brief Explanation of Federal Rule of Civil Procedure 35.
Rule 35 of the Federal Rules of Civil Procedure governs physical and mental

examinations. The rule states, in relevant part, that “[t]he 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.” Parties have no inherent right to this

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examination; the court must grant permission. Thiessen v. Gen. Elec. Capital
Corp., 178 F.R.D. 568, 570 (D. Kan. 1998).
Rule 35 was designed to allow a party to seek a medical examination of an
adversarial party whose mental or physical condition is in controversy.1 It was not
designed to allow a party to seek an examination of him- or herself. While there is
nothing in the language of the Rule prohibiting a party from requesting a medical
examination of him- or herself, the process is unnecessary. A litigant is free to
have him- or herself examined by a doctor of his or her choosing as he or she sees
fit without permission of the Court.
Plaintiff’s situation is unusual, however, in that he is incarcerated and cannot
simply attend an appointment at his leisure. Further, Defendants did not respond to
Plaintiff’s motion, meaning the Court will consider the issue to be uncontested.
See D. Kan. Rules 6.1(d)(1), 7.4.
As such, the Court instructs Defendants that 1) if Plaintiff is able procure an
appointment with Dr. Lowe (as identified in Plaintiff’s motion) and 2) if Dr. Lowe
is willing to examine Plaintiff, Defendants are to coordinate with Plaintiff and Dr.
Lowe to facilitate Plaintiff’s attendance at the appointment. Defendants will not,

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See e.g. Clancy v. Shanahan, No. 18-4106-HLT, 2019 WL 1406281, at *1 (D. Kan. March

28, 2019) (citations omitted) (holding that to obtain permission for a Rule 35 exam, a
“defendant must show that 1) plaintiff’s mental condition is in controversy and 2) that
good cause exists to conduct the examination” and that “defendant must provide more
than mere conclusory allegations” to meet these requirements).
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however, be responsible for paying for Plaintiff’s examination by Dr. Lowe. If
counsel for Defendants attests (submitted in writing to Plaintiff) that they are not
making such a contention about Plaintiff in this lawsuit, however, this appointment
will be unnecessary and Defendants will be under no obligation to facilitate its
occurrence.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Rule 35
Examination (Doc. 115) is GRANTED in part.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 6th day of August, 2020.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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