Almy v. Davis et al
Filing
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ORDER Denying 80 Motion to Submit Plaintiff for Physical Exam. Signed by Magistrate Judge Cam Ferenbach on 3/5/13. (Copies have been distributed pursuant to the NEF - MMM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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KEVIN ALMY,
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Plaintiff,
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v.
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D. DAVIS, et al.,
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Defendants.
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2:12-cv-00129-JCM -VCF
ORDER
(Motion To Submit Plaintiff for Physical
Exam #80)
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Before the court is plaintiff Kevin Almy’s Motion To Submit Plaintiff for Physical Exam. (#80).
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Defendants D. Davis, et al filed an Opposition (#80), and plaintiff did not rile a Reply.
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A.
Relevant Background
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Plaintiff Almy filed his motion to proceed in forma pauperis (#1) and complaint (#1-1) on
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January 14, 2012. On January 24, 2012, plaintiff filed a motion to appoint counsel and to file enlarged
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complaint. (#2 and #3). On January 31, 2012, and February 2, 2012, the plaintiff filed two additional
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motions for appointment of counsel. (#4 and #5). On April 4, 2012, plaintiff filed an amended
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complaint (#6) and a motion to amend complaint (#7). On May 23, 2012, the plaintiff filed a letter
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requesting a status of his case. (#8). On June 18, 2012, the court issued a screening order granting the
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motion to amend complaint (#7), denying plaintiff’s motions for counsel (#2, #4, and #5), and denying
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plaintiff’s motion to file enlarged complaint (#3) as moot. (#9). The screening order also dismissed
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several claims and deferred ruling on the motion to proceed in forma pauperis (#1) until the parties had
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an opportunity to settle the dispute via mediation. Id.
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On June 28, 2012, the court issued an order scheduling the matter for an inmate early mediation
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conference. (#10). The conference was held on August 10, 2012, and the parties did not settle. (#12).
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The court issued an order on August 13, 2012, granting the motion to proceed in forma pauperis (#1),
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ordering partial payment of the filing fees, and ordering service on the defendants. (#13). On October
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11, 2012, the defendants filed a partial motion to dismiss. (#27). Plaintiff filed a motion to extend time
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to respond to the motion to dismiss (#27). (#60). The court granted plaintiff’s motion (#60) on
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November 28, 2012. (#61).
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On January 10, 2013, plaintiff filed a motion for hearing/production of prisoner. (#78). On
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January 16, 2013, plaintiff filed a notice of partial motion to dismiss (#79), and on January 17, 2013,
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plaintiff filed a motion to submit plaintiff for physical exam (#80). On January 23, 2013, defendants
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filed a response to the notice (#79), and on January 24, 2013, defendants filed a response to the motion
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for hearing/production of prisoner (#83). On January 28, 2013, plaintiff filed a motion for the District
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Judge to amend order #61 (#84) and a motion for order to serve summons and civil complaint (#85).
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On February 1, 2013, defendants filed the instant motion to extend time to respond to plaintiff’s motion
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to submit to physical exam (#80). (#86).
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Plaintiff filed a reply in support of his motion for hearing/production of prisoner on February
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12, 2013. (#88). On February 13, 2013, plaintiff filed an opposition to defendants’ motion to extend
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time (#86). (#89). On February 15, 2013, defendants filed a reply in support of their motion for
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extension of time. (#90). Defendants filed an opposition to the plaintiff’s motion to submit to physical
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exam (#80). (#91). On February 20, 2013, the court issued an order granting plaintiff’s motion for
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order to serve summons and complaint (#85). (#92). On February 21, 2013, summons were issued as
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to Brandon Davis and Richard Nelson. (#93 and #93-1). On February 25, 2013, plaintiff filed an
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opposition to the motion to dismiss (#27). (#94).
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On February 28, 2013, the court issued an order granting the motion to extend time to respond
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(#86) to motion to submit plaintiff to physical exam (#80). (#95). The court did not set an opposition
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deadline as defendants had already filed their opposition (#91). Id. On March 1, 2013, plaintiff filed
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a motion for sanctions (#96), motion for waiver of page limitations (#97), and motion to amend order
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(#98). Plaintiff’s reply in support of his motion to submit plaintiff to physical examination (#80) was
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due on March 1, 2013. Plaintiff did not file a reply.
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B.
Plaintiff’s Motion To Submit For Physical Exam
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1.
Arguments
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Plaintiff asks this court to submit him to a “physical exam by Dr. George Michael Elkanich
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and/or other staff of Bone & Joint Specialists of Las Vegas, Nevada, for purposes of being an expert
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witness on behalf of the plaintiff...” (#80). Plaintiff asserts that he suffered multiple serious injuries
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in a rollover car accident in 2004, including “severe tearing of the left shoulder tendons and muscles.”
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Id. Plaintiff states that Dr. Elkanich ordered him to undergo physical therapy for his shoulder and
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performed two surgeries on his shoulder. Id. Plaintiff claims that several incidents that occurred at the
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Nevada Department of Corrections (hereinafter “NDOC”) facilities caused further injuries to his
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shoulder. Id.
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Plaintiff asserts that Federal Rule of Civil Procedure 35 permits the court to order the physical
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examination of plaintiff and that “good cause” exists for the examination, because (1) plaintiff has the
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right to have an expert witness, (2) plaintiff continues to suffer pain, diminished strength, and range of
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motion, (3) plaintiff’s pain has “imposed limitations on exercise thereby imposing adverse health
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implications,” (4) NDOC has declined/refused to provide anything for plaintiff’s pain, (5) NDOC has
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done nothing to repair the injuries inflicted by malicious and sadistic prison officials, (6) Dr. Elkanich
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“is best qualified to determine the extent of re-tearing/re-injury, and (7) any examination or reports by
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NDOC medical “this long after the injury would be suspect [of being] self serving.” Id. Plaintiff also
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proposes a plan to bring him to the doctor’s office and offers to pay the expense of any medical
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procedures Dr. Elkanich deems necessary. Id.
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Defendants oppose the motion (#80) for several reasons, including: (1) Rule 35 does not
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authorize a litigant to seek his own physical examination, (2) plaintiff does not need a medical expert
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to establish the elements of his claims, (3) plaintiff is not permitted to seek supplemental medical
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treatment, and (4) the logistics of plaintiff’s proposal are “unworkable.” (#91). The defendants also
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assert that plaintiff has not demonstrated that Dr. Elkanich has consented to conducting the physical
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exam or to being an expert witness in this action, and that plaintiff does not have the funds in his inmate
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account to pay for the transportation, the exam, or the costs of an expert. Id.
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2.
Relevant Law/Discussion
a.
Rule 35
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Rule 35(a)(1) states that “[t]he court where the action is pending may order a party whose mental
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or physical condition--including blood group--is in controversy to submit to a physical or mental
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examination by a suitably licensed or certified examiner. The court has the same authority to order a
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party to produce for examination a person who is in its custody or under its legal control.” Fed. R. Civ.
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P. 35(a)(1). An order for the physical examination “may be made only on motion for good cause and
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on notice to all parties and the person to be examined; and must specify the time, place, manner,
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conditions, and scope of the examination, as well as the person or persons who will perform it.” Fed.
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R. Civ. P. 35(1)(2)(A) and (B).
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Rule 35 “does not vest the court with authority to appoint an expert to examine a party wishing
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an examination of himself. Instead, under appropriate circumstances, it allows the court to order a party
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to submit to a physical examination at the request of an opposing party.” Smith v. Carroll, 602 F. Supp.
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2d 521, 526 (D. Del. 2009)(emphasis added); See also Brown v. United States, 74 F. App'x 611, 614
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(7th Cir. 2003) (holding that Rule 35 does not permit the court to appoint an expert to examine a party
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wishing an examination of himself and only, in certain circumstances, allows the court to order a party
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to submit to a physical examination at the request of an opposing party).
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Plaintiff asks this court to submit him to a physical examination so that Dr. Elkanich can act as
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his expert and adequately determine the extent of his shoulder injuries. (#80). As previous courts have
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held, Rule 35 does not give this court the authority to appoint an expert to examine the plaintiff who
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is seeking examination of himself. Smith, 602 F. Supp. 2d at 526; Brown, 74 F. App'x at 614.
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Plaintiff’s request to be submitted for a physical exam under Rule 35 (#80) in denied. Id.
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b.
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Rule 706(a)
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“The district court has the discretion to appoint an expert pursuant to Rule 706(a) of the Federal
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Rules of Evidence, which reads, in part, “[t]he court may on its own motion or on the motion of any
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party enter an order to show cause why expert witnesses should not be appointed ....”
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Scribner, CVF045595OWWDLBP, 2007 WL 1215420 (E.D. Cal. Apr. 24, 2007) (citing Fed. R. Evid.
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706(a); Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th
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Cir.1999)). "The plain language of section 1915 does not provide for the appointment of expert
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witnesses to aid an indigent litigant." Hannah v. United States, 523 F.3d 597, 601 (5th Cir. 2008)
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(quoting Pedraza v. Jones, 71 F.3d 194, 196 (5th Cir.1995)). Pursuant to Rule 706, however, the court
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has discretion to apportion costs in the manner directed by the court, including the apportionment of
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costs to one side. Fed. R. Evid. 706(b). In situations such as this, where a plaintiff is proceeding in
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forma pauperis and is presumably unable to pay for an expert,1 and the government would bear the cost
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of appointing the expert, the "court should exercise caution." Id.
Lopez v.
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“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand
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the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
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experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Fed. R.
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Evid. 702. The decision whether or not to admit expert testimony does not rest upon the existence or
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strength of the expert's opinion but rather whether the expert testimony will assist the trier of fact in
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drawing its own conclusion as to a fact in issue. Lopez, 2007 WL 1215420 *1 (citing United States v.
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Rahm, 993 F.2d 1405, 1412 (9th Cir.1993).
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Plaintiff asserts claims for excessive force in violation of the Eighth Amendment. (#9). To
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prevail on a claim for excessive force, the plaintiff must establish that force was used “maliciously and
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Plaintiff states that he would “absorb the costs of Dr. Elkanich’s examination” (#80), but the defendants
provided the court with a copy of the plaintiff’s inmate account inquiry demonstrating that plaintiff has $00.07 in his
account and owes $355.41 (#91-4 Exhibit D).
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sadistically for the purpose of causing harm,” rather than “in a good-faith effort to maintain or restore
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discipline.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). Plaintiff does not need to establish that his
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injury was “significant, serious, or more than minor.” Gomez v. Chandler, 163 F.3d 921 (5th Cir. 1999).
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An expert will not assist the trier of fact in understanding if the defendants’ alleged use of force
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was malicious and sadistic for the purpose of causing harm. As this element “does not depend on
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technical determinations, but instead hinges on the intent of the prison administrators,” and no
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“scientific, technical, or other special knowledge” is required to help the trier of fact, an expert is not
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necessary for plaintiff to present his case to a jury. See Salcido v. Zarek, 237 F. App'x 151, 152 (9th Cir.
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2007)(holding that the District court did not err in denying plaintiff’s request for an expert where the
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case depended on the defendants’ intent in providing medical care to plaintiff); Fed. R. Evid. 702 (“A
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witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify
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in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized
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knowledge will help the trier of fact to understand the evidence or to determine a fact in issue...”).
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The expert is also not necessary to establish that plaintiff was injured. As plaintiff claims that
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he went to the infirmary after the incidents, plaintiff’s medical records will demonstrate any injuries
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suffered. Appointing an expert to conduct a physical examination to determine the severity of his re-
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injury or the re-tearing of his shoulder is unnecessary.
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demonstrating the severity of injury is not required).
Gomez, 163 F.3d 921 (holding that
To the extent plaintiff’s motion (#80) seeks the appointment of an expert to testify on his behalf
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regarding his Eighth Amendment claims, the request is denied.
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Accordingly, and for good cause shown,
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IT IS HEREBY ORDERED that plaintiff Kevin Almy’s Motion To Submit Plaintiff for
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Physical Exam (#80) is DENIED.
DATED this 5th day of March, 2013.
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CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE
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