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Azevedo v. City of Fresno

December 30, 2009


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge


Defendants City of Fresno, Fresno Police Department and Officer Nathan Carr ("Defendants") filed the instant motion to compel Plaintiff Lawrence Azevedo ("Plaintiff") to submit to an independent medical examination ("IME"). The matter was heard on December 18, 2009, before the Honorable Dennis L. Beck, United States Magistrate Judge. Rosemary McGuire appeared on behalf Defendants. John Fattahi appeared telephonically on behalf of Plaintiff.


Plaintiff filed a complaint pursuant to 42 U.S.C. § 1983 in Fresno County Superior Court on December 30, 2008. Defendants removed the action to this Court on February 27, 2009.

According to the Complaint, Plaintiff alleges that Officer Karr (and Doe Defendants) detained and arrested him without probable cause and with the use of objectively unreasonable and excessive amounts of force on November 7, 2007. The Complaint contains causes of action for violation of the Fourth Amendment (unreasonable search and seizure), municipal liability, and violation of the Fourteenth Amendment (substantive due process). As relief, Plaintiff seeks general, special and exemplary damages.

In his Fed. R. Civ. P. 26(a)(1) disclosure, Plaintiff reportedly claimed to have sustained emotional distress, mental anguish and loss of enjoyment of life. In his interrogatory responses, Plaintiff claimed that as a result of the incident, he has "fear of police, diminished self-confidence, humiliation, decreased concentration, depression, insomnia, anxiety." Joint Statement, p. 2.

Plaintiff testified at deposition on October 7, 2009. According to Defendants, Plaintiff testified that the incident affected him mentally and emotionally, he is depressed all the time and he is unable to work because the incident affected him mentally. He reportedly also "broke down" several times during the deposition and, at one point, his counsel suggested that the deposition be continued because of his emotional state. Joint Statement, p. 2.

On October 21, 2009, defense counsel sent a letter to Plaintiff's counsel requesting an IME. On October 28, 2009, Plaintiff's counsel responded, indicating that Plaintiff had not alleged a specific mental or psychiatric injury and only sought compensation for "garden variety" emotional distress incident to his physical injuries.

The parties met and conferred telephonically on November 2, 2009. They did not reach an agreement.

Defendants filed the instant motion to compel an IME on November 10, 2009. In the motion, Defendants acknowledge that Plaintiff asserts no separate claim for infliction of emotional distress. However, Defendants contend that Plaintiff has claimed specific mental and/or psychiatric injuries (1) in his interrogatory responses; and (2) in his deposition testimony. They argue that because Plaintiff is claiming an inability to work due to his mental state it raises his claim of emotional distress to "severe," not "garden variety." Defendants request that Plaintiff submit to an approximately four-hour IME, conducted by Harold Seymour, Ph.D., a licensed clinical psychologist, and consisting of a clinical interview and Personal Assessment Inventory diagnostic test.

On December 1, 2009, Plaintiff filed an opposition to the motion. Plaintiff contends (1) he has not alleged a specific mental or psychiatric injury or disorder, but garden-variety allegations of "humiliation, mental anguish, and emotional distress;" and (2) he has not claimed any unusually severe emotional distress. Plaintiff indicates that he is not opposed to a denial of the motion on the condition that he may not either (1) bring a claim for intentional or negligent infliction of emotional distress, (2) make an allegation of a specific mental or psychiatric injury or disorder unrelated to his physical injuries, (3) bring a claim of unusually severe emotional distress (including a claim that he has lost any earnings because of emotional distress unrelated to his physical injuries), or (4) offer any expert testimony to support his emotional distress claim. Opposition, p. 9.

The parties also filed a joint statement of discovery dispute on December 11, 2009.


Defendants seek an independent medical examination of Plaintiff pursuant to Federal Rule of Civil Procedure Rule 35. In ...

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