Ballard v. NC Dept. of Public Safety et al

Filing 45

ORDER granting nunc pro tunc 38 Motion for Extension of Time to File Response to Motion to Dismiss for Failure to State a Claim; denying 38 Motion to Appoint Counsel; denying 38 Motion for Copies of All Records Pertai ning to Plaintiff; denying 31 Motion to Dismiss for Failure to State a Claim; denying 35 Motion for Reconsideration re Order on Motion to Appoint Counsel; denying 36 Motion for a Physical Examination. Signed by Chief Judge Frank D. Whitney on 2/9/2015. (Pro se litigant served by US Mail.)(cbb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:13-cv-175-FDW
ROBERT S. BALLARD,

)
)
Plaintiff,
)
)
vs.
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NC DEPARTMENT OF
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PUBLIC SAFETY,
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MARTA M. KALINSKI, Doctor,
)
PAULA SMITH, Doctor, Director of
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Health Services,
)
)
Defendants.
)
___________________________________ )

ORDER

THIS MATTER is before the Court on a Motion to Dismiss for Failure to State a Claim
under Rule 12(b)(6) of the Federal Rules of Civil Procedure, filed by Defendant Marta Kalinski.
(Doc. No. 31). Also pending before the Court are (1) Plaintiff’s Motion for Reconsideration re
Order on Motion to Appoint Counsel, (Doc. No. 35), (2) Plaintiff’s Motion for a Physical
Examination, (Doc. No. 36), and (3) Plaintiff’s Motion for Extension of Time to File
Response/Reply re Motion to Dismiss for Failure to State a Claim; Motion to Appoint Counsel;
Motion for Copies of All Records Pertaining to Plaintiff, (Doc. No. 38).
On June 30, 2014, this Court conducted an initial review of Plaintiff’s Complaint
pursuant to 28 U.S.C. § 1915(e)(2) and concluded that Plaintiff’s allegations of an Eighth
Amendment violation against Defendant Kalinski survived initial review. (Doc. No. 19). The
standard of review for dismissal under 28 U.S.C. § 1915(e)(2) is the same as the standard under
Rule 12(b)(6). De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). Therefore, the Court
has already determined that Plaintiff has sufficiently stated a claim under Rule 12(b)(6) against
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Defendant Kalinski for an Eighth Amendment violation. Defendant’s motion to dismiss is
denied for the reasons stated in the Court’s prior order.1
Next, as to Plaintiff’s Motion for Reconsideration re Order on Motion to Appoint
Counsel, (Doc. No. 35), the Court denies the motion for the reasons stated in the Court’s initial
order denying appointment of counsel.
Next, as to Plaintiff’s Motion for a Physical Examination, filed on September 3, 2014,
Plaintiff seeks an order from this Court, pursuant to Rule 35 of the Federal Rules of Civil
Procedure, “for a physical examination of Plaintiff’s back, including all past records to be
reviewed by an expert medical specialist to set forth for this Court how bad Plaintiff has suffered
with pain and how Plaintiff’s every day activity has been affected and what could been done to
help Plaintiff.” (Doc. No. 36 at 1). Rule 35 does not contemplate the type of relief sought by
plaintiff—a physical examination of himself. See FED. R. CIV. P. 35; Brown v. United States, 74
F. App’x 611, 614 (7th Cir. 2003) (“[Rule 35] does not vest the court with authority to appoint
an expert to examine a party wishing an examination of himself.”); Green v. Branson, 108 F.3d
1296, 1304 (10th Cir. 1997) (Rule 35 motion not properly used to obtain medical care or to
complain of deliberate indifference to an inmate’s medical needs); Woodruff v. Byars, No. 5:12344-RMG-KDW, 2012 WL 1977911, at *1 (D.S.C. June 1, 2012) (denying plaintiff’s motions
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To the extent that Defendant Kalinski contends in the motion to dismiss that she properly
refused Plaintiff’s requests for certain medications because Plaintiff has a history of prescription
drug abuse, Defendant must proffer such evidence on summary judgment following discovery.
For the purposes of Defendant’s motion to dismiss, the Court must take Plaintiff’s allegations as
true and construe all inferences in his favor. As the Court noted on initial review, Plaintiff
alleged in the Complaint that Defendant Kalinski took Plaintiff off of pain medications that are
vital to his well-being, that she took him off of the pain medication because of an inaccurate
report, and that she had no cause to take away his pain medication. The Court must take these
allegations as true on a Rule 12(b)(6) motion to dismiss and on initial review under 28 U.S.C. §
1915(e).
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“seeking outside medical assistance”). Thus, Plaintiff’s motion for physical examination is
denied.
Finally, the Court addresses Plaintiff’s “Motion for Extension of Time to file
Response/Reply re Motion to Dismiss for Failure to State a Claim; Motion to Appoint Counsel;
Motion for Copies of All Records Pertaining to Plaintiff.” The Court grants Plaintiff’s motion
for extension of time to file a response nunc pro tunc. The Court denies the motion to appoint
counsel for the same reasons the Court gave in denying Plaintiff’s initial motion to appoint
counsel. As to Plaintiff’s “motion for copies of all records pertaining to Plaintiff,” the Court
denies the motion because discovery has not commenced in this action. Once discovery has
commenced in this action, Plaintiff shall seek discovery from Defendant directly through
requests for discovery in accordance with Rule 26 of the Federal Rules of Civil Procedure.
IT IS, THEREFORE, ORDERED that:
1.

Defendant’s Motion to Dismiss, (Doc. No. 31), is DENIED.

2.

Plaintiff’s Motion for Reconsideration re Order on Motion to Appoint
Counsel, (Doc. No. 35), and Plaintiff’s Motion for a Physical Examination,
(Doc. No. 36); are DENIED.

3.

Plaintiff’s Motion for Extension of Time to file Response/Reply re Motion to
Dismiss for Failure to State a Claim, Motion to Appoint Counsel, Motion for
Copies of All Records Pertaining to Plaintiff, (Doc. No. 38), is GRANTED
in part and DENIED in part. That is, Plaintiff’s Motion for Extension of
Time is GRANTED nunc pro tunc; Plaintiff’s Motion to Appoint Counsel is
DENIED; and Plaintiff’s Motion for Copies of All Records Pertaining to
Plaintiff is DENIED.
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Signed: February 9, 2015

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