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Giddens v. City of Suisun

United States District Court, E.D. California

July 14, 2017

RICHARD GIDDENS, Plaintiff,
v.
CITY OF SUISUN, et al., Defendants.

          ORDER

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Pending before the court is defendants' Motion to Compel a Mental Examination of pro se plaintiff Richard Giddens, pursuant to Fed.R.Civ.P. 35(a). ECF No. 83. The parties filed a Joint Statement including plaintiff's objection to the examination as well as defendants' reason for filing the Motion. ECF No. 87. This discovery matter was referred to the undersigned by E.D. Cal. R. (“Local Rule”) 302(c)(1).

         I. BACKGROUND

         Plaintiff filed his complaint on May 23, 2016, alleging multiple causes of action against several defendants. ECF No. 1. Plaintiff's second amended complaint (“SAC”) was adopted by this court as the operative complaint. ECF No. 44. The SAC alleges ongoing hostility by defendants against plaintiff, an illegal arrest, assault and battery, false prosecution, and both intentional and negligent infliction of emotional distress. ECF No. 39 at 2. Plaintiff alleges that as a result of defendants' conduct, he is currently “under the care of Air Force Doctors including an Air Force Neurologist for his still occurring concussive symptoms - dizziness, headaches, tinnitus, memory loss, sensitivity and pain from noise along with nightmares as a result of the severe emotional distress brought from the acts of Defendants Mattos and Urlab.” Id. at 8, ¶ 53. Plaintiff claims to suffer, as a result of defendants' conduct, “physical and emotional injuries, great pain and suffering” and alleges he was “subjected to great fear and terror, personal humiliation, degradation” and he “continues to suffer physical pain and severe emotional distress.” Id. at 19, ¶ 132. Plaintiff seeks damages for intentional and negligent infliction of emotional distress, asserting that he has experienced “documented suffering, anguish, fright, horror anxiety, depression, withdrawal, fear, humiliation, worry, and shame.” Id. at 33, ¶230, see also ¶¶ 228-240.

         On June 19, 2017, defendants filed a motion to compel a mental examination of plaintiff pursuant to Federal Rule of Civil Procedure 35. ECF No. 83 at 1. The parties filed a joint statement regarding the discovery disagreement on July 5, 2017. ECF No. 87. The joint statement indicates that the parties adequately engaged in the meet and confer process, and describes their efforts in sufficient detail. Id. at 2-3. Plaintiff filed a separate opposition to the motion to compel on July 11, 2017. ECF No. 95. The court held a hearing on the motion on July 12, 2017. ECF No. 96. At the hearing, the court informed the plaintiff that it would disregard his opposition to the motion to compel as procedurally improper under Local Rule 251.

         II. DISCUSSION

         a. Rule 35 Mental Examination

         Plaintiff makes specific allegations regarding emotional distress and ongoing psychiatric symptoms and distress, and therefore a mental health examination is warranted. Rule 35 of the Federal Rules of Civil Procedure allows a court, upon motion and for good cause, to order a mental examination by a suitably licensed or certified examiner of a party whose mental condition is “in controversy.” Fed.R.Civ.P. 35(a); (1964). The requirements “are not met by mere conclusory allegations of the pleadings-nor by mere relevance to the case-but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination.” Schlagenhauf, 379 U.S. at 118.

         To establish that a mental condition is “in controversy, ” the moving party should demonstrate one or more of the following factors:

(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 ...

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