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Darren Henderson v. T. Felker

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 8, 2011

DARREN HENDERSON, PLAINTIFF,
v.
T. FELKER, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Plaintiff has filed various discovery requests with the court. See Dckt. Nos. 69, 71, 72, 73, 74, 75, 76, 77, 78. Plaintiff also moves, pursuant to Rule 35 of the Federal Rules of Civil Procedure, for a court order directing he be given a physical examination. Dckt. Nos. 70,79.

As the court has previously informed plaintiff, see Dckt. No. 67, he must serve his requests for discovery on defendants rather than filing them with the court. Interrogatories, requests for production, requests for admission, responses and proofs of service thereof "shall not be filed with the clerk until there is a proceeding in which the document or proof of service is at issue. When required in a proceeding, only that part of the request and response that is in issue shall be filed." Local Rules 250.2-250.4. There is no proceeding before the court that requires plaintiff's discovery requests for its resolution. Plaintiff's multiple discovery requests will therefore be stricken from the docket.

Additionally, the court must deny plaintiff's requests for a court ordered physical examination. Rule 35 provides, in relevant part:

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.

Fed. R. Civ. P. 35(a)(1). Plaintiff requests an examination by a doctor who is independent of the California Department of Corrections and Rehabilitation and who can testify as to the standard of care regarding persons with diabetes and other related complications. Dckt. No. 70. Plaintiff's motion must be denied, as Rule 35, "does not vest the court with authority to appoint an expert to examine a party wishing an examination of himself." Callegari v. Lee, No. C 08-2420 MMC, 2011 U.S. Dist. LEXIS 5087, at *21 (N.D. Cal. Jan. 19, 2011) (quotation omitted); see also Baker v. Hatch, No. Civ. S-07-2204 FCD EFB P, 2010 U.S. Dist. LEXIS 91974, 2010, at *7-9 (E.D. Cal. Aug. 12, 2010) ("Rule 35 does not give the court authority to appoint an expert to examine a party on his own motion"). Plaintiff's motion for a court ordered examination will therefore be denied.

Accordingly, it is hereby ORDERED that:

1. Plaintiff's discovery requests, Dckt. Nos. 69, 71, 72, 73, 74, 75, 76, 77, 78, are stricken and the Clerk of the Court shall make a notation on the docket to that effect.

2. Plaintiff's requests for a court ordered physical examination, Dckt. Nos. 70, 79, are denied.

20110308

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