United States District Court, D. Arizona
S. Willett United States Magistrate Judge.
before the Court are a number of motions filed by Plaintiff.
The Court has reviewed the motions and issues its rulings as
set forth below.
Plaintiff's “Recommendation for Rule 35. Garcia
Laboratory Results” (Doc. 59) and “Request for
Rule 35 Physical and Mental Examination” (Doc. 65)
35(a)(1) of the Federal Rules of Civil Procedure authorizes
the Court to order a party whose mental or physical condition
“is in controversy to submit to a physical or mental
examination by a suitably licensed or certified
examiner.” Such an examination is justified if a
party's medical condition is in controversy and good
cause exists. Schlagenhauf v. Holder, 379 U.S. 104,
April 27, 2016, Plaintiff filed a “Discovery Request to
be Examined by an Outside Physician” (Doc. 50). The
Court did not find good cause to grant Plaintiff's
request and denied the motion (Doc. 58 at 9). Plaintiff now
files copies of laboratory results (Doc. 60) and his
“Recommendation for Rule 35. Garcia Laboratory
Results” (Doc. 59), stating that Plaintiff was
diagnosed in 2008 in Durango Jail with HIV/AIDS and is being
deprived of medicine for the condition. Plaintiff requests
that the Court “grant Rule 35 to have the examiner of
physician [sic] to examine Garcia Laboratory results
‘unbias' to delineate and confirm the severity of
my condition . . . .” (Doc. 59 at 2). The lab reports
provided by the Plaintiff do not establish that Plaintiff has
HIV/AIDS. The Court considered this lab report in its Order
filed on March 4, 2016 and found that the report “does
not support Plaintiff's claim that he suffers from HIV,
AIDS . . . .” (Doc. 43 at 4-5).
September 15, 2016, the Clerk of Court docketed
Plaintiff's “Request for Rule 35 Physical and
Mental Examination, ” in which Plaintiff states that he
“wishes to be alleviated or treated” for a number
of alleged medical conditions. (Doc. 65 at 2). It is improper
to move for a Rule 35 examination for the purpose of
obtaining medical treatment. See Green v. Branson,
108 F.3d 1296, 1304 (10th Cir. 1997) (upholding denial of
inmate's Rule 35 motion where the “primary purpose
was to obtain medical care and to complain of deliberate
indifference to his serious medical needs”).
Court finds that Plaintiff has failed to establish good cause
for an independent medical examination pursuant to Rule 35,
Fed.R.Civ.P. Further, it has been held that “Rule 35
does not allow for a physical examination of oneself . . .
.” Berg v. Prison Health Services, 376 F.
App'x 723, 724 (9th Cir. 2010); see also Smith v.
Carroll, 602 F.Supp.2d 521, 526 (D. Del. 2009) (stating
that Rule 35 “does not vest the court with authority to
appoint an expert to examine a party wishing an examination
of himself”). Finally, Plaintiff has not demonstrated
the ability to pay for the costs of an independent medical
examination. See Patton v. Hollingsworth, No.
2:14-cv-00519-LDG-PAL, 2015 WL 1877426, at *1 (D. Nev. April
22, 2015) (“Rule 35 does not authorize [pro se prisoner
plaintiff] to seek his own free examination to obtain
evidence to prosecute his case.”).
above reasons, Plaintiff's requests for an independent
medical examination (Docs. 59, 65) will be denied. In
addition, Plaintiff is warned that he should not file
duplicative motions on any subject matter in this case.
Duplicative motions will be stricken without further notice
to Plaintiff and without considering the additional arguments
contained in the duplicative motions.
Plaintiff's “Memorandum of Law In Support of
Appointment of Counsel” (Doc. 64)
March 2016, the Court denied Plaintiff's request for the
appointment of counsel (Doc. 36). (Doc. 44). On April 15,
2016, Plaintiff filed a “Recommendation to be Appointed
Counsel” (Doc. 49), in which Plaintiff stated that
“I believe the District Court is fully aware of my
ignorance of law; I respectfully request to be Appointed
Counsel . . . .” The Court denied the motion (Doc. 58
at 11). On September 2, 2016, Plaintiff filed
“Memorandum of Law in Support of Motion to Be Appointed
Counsel” (Doc. 64), again requesting the appointment of
counsel because Plaintiff (i) is “in punitive
Administrative Segregation and has no ability to investigate
the facts, ” (ii) is an indigent prisoner without legal
training, (iii) “might have a jury trial, which
requires much greater legal skills than the Plaintiff has or
previously explained to Plaintiff, there is no constitutional
right to the appointment of counsel in a civil case. See
Johnson v. U.S. Dep't of Treasury, 939 F.2d 820, 824
(9th Cir. 1991); Ivey v. Bd of Regents of the Univ. of
Alaska, 673 F.2d 266, 269 (9th Cir. 1982). The Court may
appoint counsel for indigent civil litigants only in
exceptional circumstances. Wilborn v. Escalderon,
789 F.2d 1328, 1331 (9th Cir. 1986)). The Court's March
10, 2016 and July 22, 2016 Orders did not find that
exceptional circumstances existed in this case that warranted
the appointment of counsel. (Doc. 44 at 2-3; Doc. 58 at 8).
Plaintiff's statements in his “Memorandum of Law in
Support of Motion to Be Appointed Counsel” do not alter
that finding. Accordingly, the Court will deny
Plaintiff's third request for court-appointed counsel.
Plaintiff's “Injunction for Organization”
August 8, 2016, Plaintiff filed “Injunction for
Organization” wherein he requests that the Court send
him “copies of the First Amended complaint to submit a
‘clean' version to continue in the
proceedings.” Plaintiff indicates that he was
transferred to Kasson from Central Unit of the Arizona
Department of Corrections in July and prison officials
“lossen [sic] or taken my originals [sic] writings of
the First Amended complaint and other belongings in which
have manifest dismay in proceeding with Document #58-1
Order.” The Court deems Plaintiff's request to be a
request for the return of his papers allegedly taken during
his move. Such a request is injunctive in nature and more
appropriately directed to the Defendants, not this Court. The
Court does not have Plaintiff's documents. The Court will
order Defendant Ryan to ...