Green v. Bannister et al

Filing 35

ORDER DENYING 25 Motion for Physical Examination of Plantiff. Signed by Magistrate Judge William G. Cobb on 12/3/12. (Copies have been distributed pursuant to the NEF - JK)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MATTHEW GREEN,

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Plaintiff,
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vs.
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ROBERT BANNISTER, et al.,
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Defendant(s)
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_____________________________ _____)

3:12-cv-00004-LRH-WGC

ORDER

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Before the court is plaintiff's "Motion for Physical Examination of Plaintiff (FRCP 35)" (Doc.

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# 25). Plaintiff states he brings his motion under Fed. Rule Civil Procedure 35 but cites no authority

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for the proposition a plaintiff in a 42 U.S.C. § 1983 case may bring a motion to have himself undergo

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a "physical examination." Rule 35 is typically employed when one party wants another party to submit

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to a mental or physical examination. In Green v Branson, 108 F. 3d 1296 (10th Cir. 1997), the court

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denied a motion by the inmate section 1983 plaintiff where the purpose was for the plaintiff to obtain

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treatment. The plaintiff therein (coincidentally also named "Green") had moved under Rule 35 for a

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medical examination. The Court stated that the motion "reveal[ed] that Green's primary purpose was

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to obtain medical care and to complain of deliberate indifference to his serious medical needs...." (id.

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at 1304). This appears to be the same theory plaintiff is utilizing herein (Doc. # 35 at 6-8).

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One of the requirements the court must evaluate when considering whether a Rule 35 motion

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is whether there is good cause for the motion. Because plaintiff wants to utilize the examination to

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further his causes of action against the defendants, which is in contrast to the intent of Rule 35 (Green,

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supra), plaintiff has not shown the requisite good cause. The district court’s denial of the Rule 35

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motion was found not to be an abuse of discretion. 108 F.3d at 1304.

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Another one of the requirements a court must also address when considering a Rule 35 motion

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is payment of the costs of the medical or professional expenses of the examination. Plaintiff fails to

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discuss this consideration. Since plaintiff is proceeding in forma pauperis herein (Doc. # 9),

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presumably plaintiff is not able to absorb the expense of a medical examination himself. As

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defendants point out in their response, there is no "affirmative obligation on the States to finance and

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support prisoner litigation." (Defendants' response, Doc. # 31, citing Lewis v Casey, 518 U. S. 343,

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384 (1996)).

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Plaintiff's "Motion for Physical Examination of Plaintiff (FRCP 35)" is DENIED.

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IT IS SO ORDERED.

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DATED: December 3, 2012.

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_____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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