United States District Court, E.D. California
KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff is a state prisoner proceeding without counsel. On August 15, 2014, plaintiff filed a document styled, "Ex parte Motion Under Rule 35, Federal Rules of Civil Procedure, Medical Examination." (ECF No. 68.) Defendants filed an opposition with exhibits, and plaintiff filed a reply. As set forth more fully below, plaintiff's motion for medical examination is denied.
The Parties' Arguments
Plaintiff contends that his physical condition will become a serious controversy very shortly, and seeks a court order requiring the California Department of Corrections and Rehabilitation ("CDCR") to take plaintiff to an outside major hospital for a "full physical examination by a certified medical doctor." (ECF No. 68 at 1.) Plaintiff claims he was transferred to R.J. Donovan State Prison ("RJD") from High Desert State Prison ("HDSP") for hernia repair surgery. (ECF No. 68 at 2.) Plaintiff claims that once he arrived at RJD, he discovered there was an ongoing FBI investigation into inmate deaths at RJD. Plaintiff claims his primary care physician informed him that RJD doctors allow "hernias to repair themselves, " and alleges that Dr. Pankaj Karan was fired shortly after plaintiff's hernia was diagnosed. (ECF No. 68 at 2.) Plaintiff states that he was referred to a vascular surgeon due to the large lump above plaintiff's aneurysm "which is considered another hernia, possibly caused by the irritation from the abdominal hernia's excessive intestines rubbing above the iliac artery aneurysm." (Id.) Plaintiff alleges that prison officials at RJD are delaying, denying and interfering with new primary care providers medical referral requests, which plaintiff believes is due to the medical civil rights lawsuit pending herein. Plaintiff contends that outside appointments are being cancelled.
Plaintiff alleges that both hernias are excruciatingly painful, with nothing being done; at times, plaintiff reports the pain is a 9 on a scale of 10, causing tears. Plaintiff's hernia is not "incarcerated."
Defendants oppose plaintiff's motion for the following reasons:
1. Because plaintiff was transferred to RJD, plaintiff seeks relief from the CDCR and RJD, neither of which are parties herein, citing Zenith Radio Corp. v. Hazeltine Research, Inc. , 395 U.S. 100, 112 (1969). (ECF No. 77 at 2.)
2. Defendants argue that the remedy plaintiff seeks is inappropriate because Rule 35 is a discovery tool "whose purpose is to ensure that civil trials no longer need to be carried out in the dark." (ECF No. 77 at 2.) Defendants argue that plaintiff seeks to obtain a second opinion in order to question the medical judgment of health professionals at RJD. Defendants contend that plaintiff may file a health care appeal at RJD if he believes he is being provided inappropriate health care.
3. Defendants also contend that plaintiff failed to demonstrate good cause for such an examination. Defendants contend that plaintiff arguments concerning an FBI investigation and Dr. Karan's alleged termination are not based on plaintiff's personal knowledge and therefore are not admissible under Rule 602 of the Federal Rules of Evidence. Defendants submit that plaintiff's health care needs are being monitored and appropriately treated as demonstrated by the medical records provided with their opposition. Defendants note that plaintiff was seen by a vascular surgeon, and was then examined by Dr. Sarah Ghayouri, who concluded plaintiff's left iliac aneurysm was stable, and that because plaintiff presented with no vascular complaints, and his peripheral pulses were bilaterally normal, without any calf pain or claudication, a CT aortogram was not medically necessary. (ECF No. 77 at 4.) Plaintiff's complaints were noted as attributable to plaintiff's left inguinal hernia, which was described as "small." (Id.) Defendants noted that Dr. Ghayouri discussed with plaintiff a surgical procedure to repair the left inguinal hernia, which was described as "an elective procedure." (Id.) In addition, defendants contend that plaintiff failed to identify who would perform the medical examination and where it would take place. If such examination were to take place outside RJD, it would add transportation and security costs, and defendants argue that all such costs mitigate against plaintiff's request, particularly where plaintiff can seek a remedy through the CDCR Health Care Appeal procedures.
In reply, plaintiff reiterates that he was referred for a surgical consult for hernia repair on February 8, 2011, while plaintiff was housed at Wasco reception. Plaintiff was then transferred to HDSP, but because plaintiff presented as a high risk patient, it was agreed that a medical transfer was appropriate for plaintiff's hernia repair surgery. Plaintiff has now been waiting 44 months for hernia repair. Plaintiff recites from the court's March 28, 2014 order: "Plaintiff's hernia is a serious medical need, ... the Ninth Circuit has noted that... a prisoner states a cognizable deliberate indifference claim where prescribed treatment for a hernia has been delayed for more than a year." (ECF No. 78 at 2, citing ECF No. 35 at 3.) (citations omitted). Plaintiff states that he has filed regular medical complaints about constant hernia pain. Plaintiff claims that the last time he saw Dr. Ghayouri in an emergency visit for hernia pain, she only confirmed the hernia was not "incarcerated, " and sent plaintiff back to housing after only a two to three minute exam. (ECF No. 78 at 3.) Plaintiff states there was no vascular exam during this visit.
On August 28, 2014, plaintiff states he saw Dr. Solomon only to hear plaintiff's medical appeals. Plaintiff stated that Dr. Solomon confirmed that Dr. Zepp and Dr. Syverson had already recommended hernia repair surgery, attached the documents to the medical appeal, and forwarded them to medical for approval. (ECF No. 78 at 4.) Plaintiff alleges that Dr. Solomon "informed plaintiff that the hernia issue should [have] been handled long before this medical visit." (Id.) Plaintiff states that the medical appeal is still in processing with a September 17, 2014 deadline. (Id.) Plaintiff alleges that RJD medical administrators are well aware of plaintiff's medical issues, but are ignoring them and deliberately depriving plaintiff of his hernia repair surgery, exposing him to serious harm and pain in violation of the Eighth Amendment. (ECF No. 78 at 4.)
Rule 35(a) of the Federal Rules of Civil Procedure provides as follows:
(a) Order for an 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. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control.
(2) Motion and Notice; Contents of the Order. The order:
(A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and
(B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.
Fed. R. Civ. P. 35(a). Plaintiff must demonstrate good cause for either a physical or mental examination. Schlagenhauf v. ...