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Said v. County of San Diego

United States District Court, S.D. California

November 7, 2014

MOHAMAD ALI SAID, an individual, Plaintiff,


RUBEN B. BROOKS, Magistrate Judge.

On October 19, 2014, Defendants Patrick Lopatosky, Brian Butcher, and the County of San Diego filed a "Motion to Compel Rule 35 Examinations [ECF No. 50]" (the "Motion to Compel"), along with a Memorandum of Points and Authorities, a declaration of Stephanie Karnavas, and several exhibits. No opposition was filed. The Motion to Compel is suitable for resolution on the papers, so the hearing set for November 17, 2014, at 10:00 a.m., is VACATED. See S.D. Cal. Civ. R. 7.1(d)(1). For the reasons explained below, the Motion to Compel is GRANTED.


Plaintiff Mohamad Ali Said filed, on October 9, 2012, a Complaint pursuant to 42 U.S.C. § 1983, alleging that he sustained injuries when he was unlawfully arrested by San Diego County Sheriff's deputies at his home on January 24, 2012. (Compl. 1, 3-4, ECF No. 1.) Additionally, Said raised several state law claims. (Id. at 1, 6-12.) A First Amended Complaint was filed on June 12, 2013, and a Second Amended Complaint was filed on November 19, 2013 [ECF Nos. 17, 23].

In the Second Amended Complaint, Plaintiff raises § 1983 claims against Deputies Patrick Lopatosky, Brian Butcher, and Scott Lee for unreasonable search and seizure, excessive force, false arrest, denial of medical attention, malicious prosecution, and violation of the Equal Protection Clause. (Second Am. Compl. 6, 8-10, ECF No. 23.)[1] Said alleges that the County of San Diego is liable for "Constitutional Violations via Unlawful Policies, Customs or Habits." (Id. at 7.) Plaintiff also raises state law claims for negligence, battery, false arrest, and violations of California Civil Code § 52.1. (Id. at 11-13.) As a result of Defendants' misconduct, Said states:

Plaintiff Mohamad Ali Said suffered severe injuries to his right elbow arm, head, back and neck, causing severe pain. He has been treating for a dislocated elbow and may require surgery in addition to therapy. He also suffered severe emotional distress as a result of the acts committed against him and as a result of being informed that his wife who is a represent [sic] a grave danger to his kids will be brought in to care for the two kids. Mohamad Ali Said also suffered severe fear, humiliation, damage to his reputation and emotional distress as a result of being arrested, taken to jail and being forced to endure the indignities of being booked, fingerprinted, photographed and searched at the county jail despite the fact that he had done nothing unlawful. Mohamad Ali Said had to pay bail to secure his release from jail. He suffered further emotional distress as a result of having to defend false criminal charges and he has additional damages associated with having an arrest record and having the criminal case filed against him.

(Id. at 5.)

Lopatosky, Butcher, Lee, and the County filed a Motion to Dismiss Plaintiff's Second Amended Complaint on December 3, 2013 [ECF No. 24]. The motion to dismiss was granted in part and denied in part by United States District Court Judge Gonzalo P. Curiel on January 21, 2014 [ECF No. 31]. In his order, Judge Curiel dismissed Lee as a Defendant (Order 14, ECF No. 31); the remaining Defendants filed an Answer on February 4, 2014 [ECF No. 32]. An early neutral evaluation conference and case management conference were held on April 18, 2014 [ECF No. 37]. On October 19, 2014, the Motion to Compel was filed [ECF No. 50].


Federal Rule of Civil Procedure 35(a) provides that a Court may order a medical examination if a litigant's physical or mental condition is "in controversy" and there is a showing of good cause. "Rule 35 is to be construed liberally to allow the examination.'" Sanders v. Holdings, No. 11cv1590 LAB (MDD), 2012 WL 2001967, at *2 (S.D. Cal. June 4, 2012) (citing Tan v. City and Cnty. of S.F., No. C 08-01564 MEJ, 2009 WL 594238, at *2 (N.D. Cal. Mar. 4, 2009)). When ordering an examination, the Court "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)(2)(B).

"A plaintiff's mental or physical condition is in controversy' when such condition is the subject of the litigation." Hernandez v. Simpson, No. ED CV 13-2296-CBM (SPx), 2014 WL 4090513, at *2 (C.D. Cal. Aug. 18, 2014) (citing Gavin v. Hilton Worldwide, Inc., 291 F.R.D. 161, 164 (N.D. Cal. 2013)). In determining whether a litigant's mental state is "in controversy, " courts in this district apply the test outlined in Turner v. Imperial Stores, 161 F.R.D. 89, 95 (S.D. Cal. 1995). In Turner, the Court held that a mental examination may be ordered when one or more of the following circumstances are present:

1) a cause of action for intentional or negligent infliction of emotional distress; 2) an allegation of a specific mental or psychiatric injury or disorder; 3) a claim of unusually severe emotional distress; 4) plaintiff's offer of expert testimony to support a claim of emotional distress; and/or 5) plaintiff's concession that his or her mental condition is "in controversy" within the meaning of Rule 35(a).

Id. "In assessing whether good cause' exists, courts have considered the possibility of obtaining desired information by other means, whether plaintiff plans to prove her claim through testimony of expert witnesses, whether the desired materials are relevant, and whether plaintiff is claiming ongoing emotional distress.'" Conforto v. Mabus, No. 12cv1316-W (BLM), 2014 WL 3407053, at *3 (S.D. Cal. July 10, 2014) ...

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