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Weldon v. Conlee

United States District Court, E.D. California

March 20, 2015

PAUL WELDON, Plaintiff,
v.
JOHN CONLEE, et al., Defendants.

ORDER GRANTING DEFENDANT'S MOTION FOR MENTAL EXAMINATION AND DENYING PLAINTIFF'S MOTION FOR PROTECTIVE ORDER (ECF Nos. 88, 95, 115) ORDER FOR PLAINTIFF TO SHOW CAUSE WHY SANCTIONS SHOULD NOT BE IMPOSED FOR FAILURE TO PARTICIPATE IN JOINT STATEMENT BY APRIL 3, 2015

STANLEY A. BOONE, Magistrate Judge.

On January 20, 2015, Defendant Jerry Conlee[1] filed a motion to compel Plaintiff's participation in a mental examination. (ECF No. 88.) Plaintiff filed a motion for a protective order regarding any mental examination on February 17, 2015. (ECF No. 95.) Defendant filed a discovery dispute statement on March 18, 2015 in which Plaintiff did not participate. (ECF No. 115.)

The Court finds it appropriate for the parties' motions to be submitted upon the record and briefs on file without need for further oral argument. See Local Rule 230(g). Accordingly, the hearing scheduled for March 25, 2015 will be vacated.

For the reasons set forth below, the Court will deny Plaintiff's motion for a protective order and grant Defendants' motion to compel a mental examination of Plaintiff.

I.

BACKGROUND

The operative complaint in this matter is the Fourth Amended Complaint filed on September 2, 2014. (ECF No. 77.) Plaintiff's claims arise from an incident on April 18, 2011. Plaintiff alleges that he was pulled over while driving a van by Defendant John Conlee. Plaintiff alleges that Conlee was impersonating a Fresno Police Officer because he never took a proper oath of office. Plaintiff further alleges that Conlee was rude to Plaintiff and eventually ordered Plaintiff out of the van and assaulted Plaintiff by twisting his arms behind his back to handcuff him. Plaintiff also alleges that, although the van was properly registered, Conlee ripped the registration tab off of the license plate and called Econo Towing Company to tow the car away. The towing truck was operated by Defendant Beryle Dodson. Econo Towing Company is owned by Defendants Marty Kodman and Robert Kodman.

The Court has construed Plaintiff's Fourth Amended Complaint as asserting claims under Section 1983 for the use of excessive force in violation of the Fourth Amendment, unreasonable search and seizure in violation of the Fourth Amendment, failure to provide sufficient notice regarding a seizure in violation of the Fourteenth Amendment, and for conversion.

Defendant Conlee proposes that a mental examination of Plaintiff be performed by Harold Seymour, Ph.D. Defendant Conlee indicates that the examination will involve a standard psychological examination from a face-to-face interview with Plaintiff. Questions will include Plaintiff's background information, Plaintiff's claims of illness and injury, any prior injuries, a psychological history, medical history, family history, and a mental status examination.

Plaintiff seeks a protective order arguing that since he is only seeking $1.00 in damages Defendant is not acting in good faith to demand a psychiatric examination and the Court can take judicial notice of the emotional injury that he suffered due to the actions of the defendants.

II.

LEGAL STANDARDS FOR MEDICAL EXAMINATIONS AND PROTECTIVE ORDERS

Federal Rule of Civil Procedure 35(a) states, in pertinent part:

(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.

Protective orders are governed by Federal Rule of Civil Procedure 26(c), which ...


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