WASHINGTON v. FOLINO et al

Filing 135

ORDER denying 131 Motion for Order to Compel Defendants to Procure Plaintiff's Phyiscal Examination by Specialist. IT IS FURTHER ORDERED that Defendants are to provide a summary of the medical treatment and care that Plaintiff has been receiv ing for his numerous ailments at SCI-Greene, accompanied by an appropriate affidavit, no later than June 29, 2012. At that point, the Court will rule on Plaintiff's Motion for Preliminary Injunction. Signed by Magistrate Judge Lisa Pupo Lenihan on June 5, 2012. (kcc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

HENRY UNSELD WASHINGTON,
Plaintiff,
v.
LOUIS S. HOLINO, et al,
Defendants.

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Civil Action No. 11 – 1046
Chief Magistrate Judge Lisa Pupo Lenihan
ECF No. 131

ORDER

Pending before the court is a Motion by the Plaintiff requestinging that the Court order
a physical examination of him by specialists pursuant to Fed. R. Civ. P. 35. (ECF No. 131). Also
pending is a Motion for a Preliminary Injunction (ECF No. 126). In both of these motions,
Plaintiff claims that he has medical needs that are not being adequately attended to by the
institution. The court will address Plaintiff's motion for a physical examination pursuant to Fed.
R. Civ. P. 35.
This rule allows the court to order a party whose mental or physical condition is in
controversy to submit to a physical or mental examination. It does not, however, allow the court
to pay for a medical expert for one party in the case. Court appointed experts are covered by Fed.
R. Civ. P. 706, which gives the court power to appoint and pay an expert for the purpose of
assisting the court, not to aid a party. The Third Circuit case of Boring v. Kozakiewicz, 833 F.2d
468 (3d Cir. 1987) addresses this issue. In that case some former pretrial detainees brought
action against county officials to recover for denial of medical treatment. The case was decided
before Pennsylvania Rule 1042.3 was enacted, however the lower court found that Plaintiffs
needed expert testimony in order to prove their case and, because they did not have any, the case

was dismissed. Plaintiffs complained on appeal that the district court wrongfully refused to pay
for an expert medical witness. The Third Circuit stated as follows:
Congress has authorized the courts to waive prepayments of such items as filing
fees and transcripts if a party qualifies to proceed in forma pauperis… However,
we have been directed to no statutory authority nor to any appropriation to which
the courts may look for payment of expert witness fees in civil suits for damages.
833 F.2d at 474. The Court has also been unable to find any authority that allows this. The Court
does not deem it appropriate to fund expert witness testimony for one party. There are thousands
of prisoner civil rights cases filed across the country. It is not only not authorized but is not
realistic for the courts to use public funding to pay for expert witnesses for prisoners. As the
Boring court pointed out, in “seeking government funding… Plaintiffs are in effect asking for
better treatment than their fellow – citizens who have not been incarcerated but who have at least
equal claims for damages.” 833 F.2d at 874.
While the Court will deny this Motion, in order for it to properly address the concerns
raised by Plaintiff in both this motion and his request for a Preliminary Injunction (ECF No. 126)
it would be helpful for the Court to have a summary, accompanied by an affidavit from an
appropriate medical professional, of the medical treatment and care that Plaintiff has been
receiving for his numerous ailments at SCI-Greene. The Defendants have provided a Response to
the Request for Preliminary Injunction but the response only contains statements by counsel and
is not supported by any affidavit verifying the authenticity of these statements. Therefore,
IT IS HEREBY ORDERED, this 5th day of June, 2012, that Plaintiff's Motion for
Order to Compel Defendants to Procure Plaintiff's Physical Examination by Specialist (ECF No.
131) is DENIED.
IT IS FURTHER ORDERED that Defendants are to provide a summary of the medical
treatment and care that Plaintiff has been receiving for his numerous ailments at SCI-Greene,

accompanied by an appropriate affidavit, no later than June 29, 2012. At that point, the court
will rule on Plaintiff's Motion for a Preliminary Injunction.

______________________________
Lisa Pupo Lenihan
United States Magistrate Judge

Cc: HENRY UNSELD WASHINGTON
AM-3086
S.C.I. Greene
175 Progress Drive
Waynesburg, PA 15370-8082