Wilson v. Wexford Health Sources et al
Filing
28
ORDER denying 26 Motion for CT scan with tissue sample of lungs; denying 25 Motion to Amend/Correct. Signed by Magistrate Judge Jane M. Virden on 7/18/16. (jtm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
JACK B. WILSON
V.
PLAINTIFF
CIVIL ACTION NO.: 4:16CV91-SA-JMV
WEXFORD HEALTH SOURCES, ET AL.
DEFENDANTS
ORDER
The plaintiff has filed a motion to amend his complaint in this action, and a motion
requesting the court order the defendants to arrange for him to have a CT scan with a lung tissue
sample. Upon due consideration, and for the following reasons, the court finds that both motions
should be denied.
In his letter to the court and in his proposed motion to amend his pending § 1983
complaint, the plaintiff inquires about the medical records in his case. The court notes that it has
previously entered an order requiring the defendants to provide the plaintiff with, among other
things, his medical records by August 1, 2016. See doc. #16. If the plaintiff does not receive
said records by the due date, he may contact the court for assistance.
Also in his motion to amend, the plaintiff notes that the court’s prior orders do not
address his allegations against Dr. Thomas Lehman or the “American Credition Associate,”
presumably meant to refer to the American Correctional Association (“ACA”). Neither Dr.
Thomas Lehman nor the ACA were listed in the plaintiff’s initial complaint or his amended
complaint as defendants, and they are not defendants in this action. Moreover, their involvement
in this matter appears to relate to the plaintiff’s desire to file criminal conspiracy charges based
on the medical care (or alleged lack thereof) he received while Christopher Epps was
Commissioner of the Mississippi Department of Corrections. Criminal proceedings are not
initiated in a § 1983 action, and the plaintiff has no right to have criminal charges brought against
anyone. See, e.g., Oliver v. Collins, 914 F.2d 56 (5th Cir.1991) (holding there is no
constitutional right to have someone else criminally prosecuted). Finally, the court notes that
much of the plaintiff’s motion addresses the circumstances and individuals involved in his
criminal trial. The plaintiff cannot challenge his criminal conviction in a § 1983 proceeding; if
he wishes to challenge the fact of his conviction, he must do so in a federal habeas proceeding.
See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Accordingly, the court finds that as none of
the plaintiff’s proposed amendments have merit, the instant motion [25] is DENIED.
Next, the court considers the plaintiff’s motion for a medical examination pursuant to
Rule 35 of the Federal Rules of Civil Procedure. Rule 35 authorizes 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). It is meant to
allow an opposing party to seek an examination; it does not allow a party to obtain an
examination of himself. See ,e.g., Brown v. United States, 74 F. App’x 611, 614 (7th Cir. 2003);
Adams v. Epps, No. 08-CV-154, 2008 WL 4861926, at *1 (S.D. Miss. Nov. 10, 2008).
Moreover, the court has no authority to require the Mississippi Department of Corrections to pay
for an independent medical examination of the plaintiff for the purpose of proving his right to
relief in this case. See, e.g., Johnson v. Hubbard, 698 F.2d 286 (6th Cir.1983) (holding right of
access to courts does not include payment of witness fees). Accordingly, the plaintiff’s motion
for a CT scan [26] is DENIED.
SO ORDERED this the 18th day of July, 2016.
s/Jane M. Virden
UNITED STATES MAGISTRATE JUDGE
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?