Simmons v. Byars et al

Filing 124

ORDER denying Plaintiff's Motion for Physical and Mental Examinations, ECF No. 84 , Plaintiff's Motion to Compel, ECF No. 85 , and Plaintiff's Motions to Appoint an Expert Witness, ECF Nos. 94 , 108 . Signed by Magistrate Judge Kaymani D West on 8/22/2013.(mcot, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Darren Simmons, #182509,
Plaintiff,
v.
William R. Byars, Jr., et al., sued in their
individual capacity,
Defendants.

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ORDER
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Plaintiff, proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. This matter is
before the court on Plaintiff’s Motion for Physical and Mental Examinations, ECF No. 84,
Plaintiff’s Motion to Compel, ECF No, 85, and Plaintiff’s Motions to Appoint an Expert
Witness, ECF Nos. 94, 108. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local
Rule 73.02(B)(2)(d), D.S.C., this magistrate judge is authorized to review all pretrial matters in
cases filed under 42 U.S.C. § 1983.
Motion for Physical and Mental Examinations, ECF No. 84
Plaintiff requests, pursuant to Fed. R. Civ. P. 35(a), that he be examined by an outside
neurologist concerning “a small scattered area of previous brain shearing injury.” ECF No. 84 at
1. Plaintiff contends that a “neurologist examination is needed because [he] is in extreme pain
and a neurologist could best determine[] whether the [] small scattered areas of previous brain
laceration or shearing injury is the primary cause.” ECF No. 109 at 1. Plaintiff also requests that

he be provided a copy of the subsequent report and “all tests made with diagnoses.”

ECF No.

84 at 1. Defendants oppose this motion. ECF No. 96.
Rule 35 of the Federal Rules of Civil Procedure provides, in relevant part,
(a) Order for Examination
(1) In general. The court where the action is pending may order a party
whose mental or physical condition–including blood group–is in
controversy to submit to a physical or mental examination by a suitably
licensed or certified examiner. . . .
(2) Motion and Notice; Contents of the Order. The order:
(A) may be made only on motion for good cause and
notice to all parties and the person to be examined; and
(B) must specify the time, place, manner, conditions, and
scope of examination, as well as the person or persons
who will perform it.
FED. R. CIV. P. 35(a). However, Rule 35 “does not vest the court with authority to appoint an
expert to examine a party wishing an examination of himself.” Brown v. United States, 74 Fed.
Appx. 611, 614 (7th Cir. 2003). Instead, Rule 35 allows, under “appropriate circumstances,” a
court “to order a party to submit to a physical examination at the request of an opposing party.”
Id.; see also Green v. Branson, 108 F.3d 1296, 1304 (10th Cir. 1997) (no abuse of discretion
where the district court denied the plaintiff’s Rule 35 motion where the plaintiff’s “primary
purpose was to obtain medical care and to complain of deliberate indifference to his serious
medical needs”); Vinson v. U.S. Marshals Serv., C/A No. 0:10-79-RMG, 2011 WL 3903199
(D.S.C. Sept. 2, 2011) (adopting the Magistrate Judge’s recommendation to deny the plaintiff’s
motion requesting a physical and mental evaluation of himself). Accordingly, Plaintiff’s Motion
for Expert Witness/Physical Examination, ECF No. 84, is denied.

Motion to Compel, ECF No. 85
On July 11, 2013, Plaintiff moved for an order compelling Defendants to respond to
discovery requests that were served on June 7, 2013, contending that Defendants “failed to
produce documents under discovery and failed to answer the interrogatories.” ECF No. 85 at 1.
Plaintiff also requests $10 in costs. Id. at 2.

In response, Defendants argue that Plaintiff’s

motion should be denied because they have now responded to Plaintiff’s discovery requests and
served them on Plaintiff on July 18, 2013. ECF No. 97 at 1. Defendants also argue that
Plaintiff’s request for costs should be denied. Id. In reply, Plaintiff argues that Defendants did
not fully answer his discovery requests because they only produced approximately 100 pages of
his 365-page medical record. ECF No. 110. Local Rule 37.01, D.S.C., requires that a party
moving to compel discovery responses provide the court with a copy of the discovery requests
and responses at issue. Plaintiff has not done so. Without a copy of Plaintiff’s discovery requests
and Defendants’ responses, the undersigned cannot determine whether Defendants’ production
of documents was adequate. Accordingly, Plaintiff’s Motion to Compel, ECF No. 85, is denied.
Motion for Appointment of Expert Witnesses, ECF Nos. 94, 108
Plaintiff requests that the court appoint a neurologist and a cardiologist to give expert
testimony concerning Plaintiff’s brain injury and Plaintiff’s heart and lung issues. ECF No. 94 at
1. In support of his motions, Plaintiff alleges that he has been diagnosed with “neurocardiogenic
shock syncope, and a[n] enlarged heart, and (COPD) chronic obstructive pulmonary disease, and
a chronic subdural, and a small scattered areas of previous shearing brain injury.” ECF No. 108
at 1-2. Plaintiff contends that he is constantly experiencing severe pain, squeezing pressure in
his chest, breathing difficulties, intracranial pressure, extreme sweating, and cardiac shock, and
that an expert is needed to “testify to the data in plaintiff[’s] case.” Id. Plaintiff also argues in his

Reply brief that a neurologist could best determine if the pain Plaintiff is experiencing is related
to Plaintiff’s shearing injury. ECF No. 109 at 1. Defendants oppose Plaintiff’s Motion for Court
Appointed Expert Witness. ECF No. 118.
First, the court finds no authority to appoint and pay an expert to assist an indigent
litigant in the preparation of a civil lawsuit. Further, the undersigned acknowledges that pursuant
to Fed. R. Evid. 706, a court may, on its own motion or on a motion by any party, appoint an
expert witness.

However, the determination to appoint an expert rests solely in the court’s

discretion and is to be determined by such factors as the complexity of the matters to be
determined and the court’s need for a neutral, expert view. See Pabon v. Goord, No. 99 Civ.
5869, 2001 WL 856601 (S.D.N.Y. July 30, 2001)). The appointment of an expert pursuant to
Rule 706 is not intended to further partisan interests of any party, but to aid the court, through the
services of an impartial expert in its assessment of technical issues.
In this case, the issues do not appear to the undersigned to be of the requisite complexity
to require appointment of an expert witness. As the underlying purpose of Rule 706 is to assist
the court in evaluating contradictory or complex evidence, rather than to aid the Plaintiff’s
prosecution of his own case, Plaintiff’s Motions for a Court Appointed Expert Witness, ECF
Nos. 94, 108, are denied.
Conclusion
Therefore, for the foregoing reasons, it is ORDERED that Plaintiff’s Motion for Physical
and Mental Examinations, ECF No. 84, Plaintiff’s Motion to Compel, ECF No. 85, and
Plaintiff’s Motions to Appoint an Expert Witness, ECF Nos. 94, 108, are DENIED.

IT IS SO ORDERED.

August 22, 2013
Florence, South Carolina

Kaymani D. West
United States Magistrate Judge