Sampson v. Schenck et al

Filing 507

ORDER granting the Defendant's 494 Motion for Order Pursuant to Fed. R. Civ. P. 35 Compelling Physical and Mental Evaluation of Plaintiff. Pursuant to NECivR 72.2 any objection to this Order shall be filed with the Clerk of the Court within fourteen (14) days after being served with a copy of this Order. Failure to timely object may constitute a waiver of any objection. Ordered by Magistrate Judge Thomas D. Thalken. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NICHOLAS SAMPSON,
Plaintiff,

8:07CV155

vs.
ORDER
INVESTIGATOR EARL SCHENK, et al.,
Defendants.
This matter is before the court on the defendants’ Joint Motion for Order
Pursuant to Fed. R. Civ. P. 35 Compelling Physical and Mental Evaluation of Plaintiff
(Filing No. 494)1. The defendants filed an index of evidence (Filing No. 495) in support
of the motion. The plaintiff filed a brief (Filing No. 499) in opposition to the motion. The
defendants filed an index of evidence (Filing No. 504) in reply.

BACKGROUND
This case arises out of the plaintiff’s, Nicholas Sampson, arrest on April 26, 2006,
in connection with a double homicide investigation. The plaintiff was incarcerated and
criminally charged in connection with the homicides. The plaintiff was subsequently
released from jail and charges were dropped without prejudice. On June 3, 2009, the
plaintiff filed an amended complaint alleging violations of his civil rights arising from the
homicide investigation. See Filing No. 230 - Amended Complaint. The plaintiff alleges
he “suffer[ed] and endure[d] 5 months of false imprisonment and psychiatric injuries . . .
and caused SAMPSON to endure (and he continues to endure) extreme mental
anguish . . . .” Id. at 15. In Counts I, II, and III the plaintiff alleges the defendants’
actions caused the plaintiff psychological harm.

Id. at 17-19.

The plaintiff seeks

damages to compensate him for “his pain and suffering.” Id. at 31.
The defendants filed the instant motion on January 16, 2013. See Filing No. 494.
The defendants seek an order requiring the plaintiff to appear for a Federal Rule of Civil
1

The defendants Investigator Earl Schenck, Sergeant Sandy Weyers, and the Cass County Sheriff’s
Office filed the motion and represented the defendants Investigator William Lambert, Investigator Charles
O’Callaghan, and the Douglas County Sheriff’s Office join in the motion. See Filing No. 494 – Motion p.
1.

Procedure 35 (Rule 35) examination by Dr. Terry Davis and Dr. Rosanna JonesThurman. Id. The defendants argue the plaintiff claims he sustained damages from
profound suffering and extreme mental anguish as a result of the violations of his
constitutional rights. Id. at 1-2. The defendants seek a Rule 35 examination to assess
the conditions for which the plaintiff is seeking damages. Id. at 4. The defendants
argue the plaintiff has placed his physical and mental health in controversy thereby
providing good cause for the examination.

Id.

The defendants scheduled the

evaluation for February 6, 2013. Id.
The plaintiff argues the defendants continue to maintain the plaintiff was involved
in the homicides. See Filing No. 499 - Response p. 1-3. The plaintiff argues the Rule
35 examination is a pretext to generate evidence against the plaintiff to reopen the
homicide case against him.

Id.

The plaintiff argues the proposed evaluators are

attempting to find an Axis I or Axis 2 disorder that comports with the plaintiff being a
murderer. Id. at 3. The plaintiff argues he is not comfortable with a new interrogation
by the people who wrongfully arrested him.

Id. at 4.

The plaintiff also expresses

concern that the evaluator is a doctor-lawyer. Id. at 7. Additionally, the plaintiff argues
the information the defendants seek is available in the plaintiff’s expert’s, Stephen
Skulsky, Ph.D., report. Id. at 6-7. Lastly, the plaintiff argues the defendants have not
demonstrated good cause for the examination or specified the manner, condition, and
scope of the examination.

Id. at 5.

In the alternative, the plaintiff argues if the

examination occurs, he should have the following protections: 1) his criminal defense
attorney, Jerry Soucie, present and 2) he receives absolute immunity from prosecution
from the Cass County Attorney and the Attorney General of Nebraska. Id. at 4.

ANALYSIS
Rule 35 provides:
(a) Order for an Examination.
(1) In General. 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. The court has the same authority to order a party

to produce for examination a person who is in its custody or
under its legal control.
(2) Motion and Notice; Contents of the Order. The order:
(A) may be made only on motion for good
cause and on notice to all parties and the
person to be examined; and
(B) must specify the time, place, manner,
conditions, and scope of the examination, as
well as the person or persons who will perform
it.
Fed. R. Civ. P. 35. “A plaintiff . . . who asserts mental or physical injury . . . places that
mental or physical injury clearly in controversy and provides the defendant with good
cause for an examination to determine the existence and extent of such asserted
injury.” Schlagenhauf v. Holder, 379 U.S. 104, 119 (1964). “[T]he pleadings alone are
sufficient to meet” the requirements of “in controversy” and “good cause.” Id.
Here the allegations in the plaintiff’s complaint place his mental condition in
controversy. In support of his claim for damages, the plaintiff alleges he suffered and
continues to suffer extreme mental anguish as a result of the violations of his
constitutional rights. See Filing No. 230 - Amended Complaint. Placing his mental
condition in controversy provides good cause for an Rule 35 examination. Additionally,
the defendants complied with Rule 35 by giving the plaintiff notice of the time, place,
manner, conditions, and scope of the examination.

The defendants scheduled the

examination for February 6, 2013. The defendants limited the scope of the evaluation
to “assessing the conditions for which Plaintiff is seeking an award of monetary
damages from this Court, namely his claimed past and ongoing pain and suffering and
mental anguish.” See Filing No. 494 - Motion p. 3. Further, the defendants want to
evaluate Sampson for the purposes of addressing Sampson’s expert’s report on
Sampson’s mental condition. Id. The defendants also listed the types of psychological
exams scheduled: the MMPI II (Minnesota Multiphasic Personality Inventory 2), the
MCMI-3 (Millon Clinical Multiaxial Inventory III) and the Victoria Symptom Validity Test.
See Filing No. 495 - Sturzenegger Aff. p. 4. The defendants have met their burden
under Rule 35. Accordingly;

IT IS ORDERED:
The defendants’ Joint Motion for Order Pursuant to Fed. R. Civ. P. 35 Compelling
Physical and Mental Evaluation of Plaintiff (Filing No. 494) is granted.

ADMONITION
Pursuant to NECivR 72.2 any objection to this Order shall be filed with the Clerk
of the Court within fourteen (14) days after being served with a copy of this Order.
Failure to timely object may constitute a waiver of any objection. The brief in support of
any objection shall be filed at the time of filing such objection. Failure to file a brief in
support of any objection may be deemed an abandonment of the objection.

Dated this 29th day of January, 2013.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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