Peters v. Raymond et al
Filing
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ORDER denying 50 Plaintiff's Motion to Stay and 51 Plaintiff's Motion for Physical and Mental Examination. Signed by Magistrate Judge William G. Cobb on 6/6/2017. (Copies have been distributed pursuant to the NEF - HJ)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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RICHARD W. PETERS,
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Plaintiff,
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vs.
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C/O RAYMOND, et al.,
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Defendants.
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______________________________________)
3:15-cv-00493-RCJ-WGC
ORDER
Re: ECF Nos. 50, 51
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Before the court are Plaintiff’s two motions, one to stay this case (ECF No. 50) and another
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seeking a court order requesting a physical and mental examination pursuant to Fed. R. Civ. P. 35
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(ECF No. 51). Both are predicated upon Plaintiff’s assertions that his mental and physical limitations
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restrict or impede his ability to prosecute this case. While Plaintiff’s motions were apparently signed
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by inmate Peters, the only documentation regarding Plaintiff’s mental status was an affidavit of inmate
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Will Lyons, presumably an inmate assistant, who represents Plaintiff appears “confused.” Inmate Lyons
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apparently dictated the two motions to inmate Peters. (ECF No. 50 at 3.) Plaintiff has submitted no
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medical or mental health records regarding his conditions.
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While Rule 35 allows a court to direct a party to submit to a mental or physical examination, such
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an order may be made upon motion demonstrating good cause. In addition to good cause, however, the
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motion “must specify the time, place, manner, conditions and scope of the examination, as well as the
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person who will perform it.” Fed. R. Civ. P. 35 (a)(2). Plaintiff’s motion discusses none of these
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criteria. Nor does Plaintiff’s motion state who should pay for the examination, which is typically borne
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by the movant.
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While Plaintiff’s motions are deficient in several respects, particularly disconcerting is any
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documentation from Plaintiff’s NDOC files which would tend to validate any of Plaintiff’s contentions
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of medical/mental infinities. Although the court recognizes any inmate Plaintiff would likely have
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difficulty in nominating a qualified health examiner, the court itself cannot select such individuals for
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Plaintiff. The United States Supreme Court has generally stated that although Congress provided relief
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for violation of one’s civil rights under 42 U.S.C. § 1983, the right to access to the courts is only a right
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to bring complaints to federal court and not a right to discover such claims or to litigate them effectively
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once filed with a court. Lewis v. Casey, 518 U.S. 343, 354-355 (1996).
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Plaintiff’s motions (ECF Nos. 50, 51) are DENIED, albeit without prejudice.
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The parties should be aware of the following:
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Any party wishing to object to this order may file, pursuant to 28 U.S.C. § 636(b)(1)(A) and
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LR IB 3-1, specific written objections within fourteen (14) days of receipt. The deadline to file and serve
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any responses to the objections is fourteen (14) days after service of the objection. Replies will be
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allowed only with leave of the court.
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IT IS SO ORDERED.
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DATED: June 6, 2017.
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____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE
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