United States District Court, E.D. California
CARLOS L. CONTRERAS, Plaintiff,
EDGAR CLARK, et al., Defendant.
ORDER DENYING MOTION TO APPOINT COUNSEL(ECF, 7)ORDER
DENYING MOTION FOR PHYSICAL EXAMINATION UNDER FEDERAL RULE
35(ECF NO. 18)
Michael J. Seng UNITED STATES MAGISTRATE JUDGE
proceeds pro se and in forma pauperis in this civil rights
action brought pursuant to 42 U.S.C. § 1983.
Plaintiff's case is currently scheduled for a settlement
conference on March 23, 2018. Plaintiff has filed a motion to
appoint counsel (ECF No. 7) and a motion for a physical
examination by a licensed physician pursuant to Federal Rule
of Civil Procedure 35 (ECF No. 18).
Motion to Appoint Counsel
moves the Court to appoint counsel on the grounds that he
lacks the legal expertise necessary to prosecute his case.
does not have a constitutional right to appointed counsel in
this action, Rand v. Rowland, 113 F.3d 1520, 1525
(9th Cir. 1997), and the court cannot require an attorney to
represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1),
Mallard v. United States District Court for the Southern
District of Iowa, 490 U.S. 296, 298 (1989). In certain
exceptional circumstances the court may request the voluntary
assistance of counsel pursuant to section 1915(e)(1).
Rand, 113 F.3d at 1525. However, without a
reasonable method of securing and compensating counsel, the
court will seek volunteer counsel only in the most serious
and exceptional cases. In determining whether
“exceptional circumstances exist, the district court
must evaluate both the likelihood of success of the merits
[and] the ability of the [plaintiff] to articulate his claims
pro se in light of the complexity of the legal issues
involved.” Id. (internal quotation marks and
present case, the court does not find the required
exceptional circumstances. Even if it is assumed that
Plaintiff is not well versed in the law and that he has made
serious allegations which, if proved, would entitle him to
relief, his case is not exceptional. This Court is faced with
similar cases almost daily. Accordingly, the Court will deny
Motion for Physical Examination
moves for an examination by a licensed physician under
Federal Rule of Civil Procedure 35. (ECF No. 18.) It appears
that Plaintiff seeks appointment of a physician to conduct a
physical examination in order to provide expert support for
Plaintiff's deliberate indifference to serious medical
Rule of Civil Procedure 35(a) permits the Court to order a
party to submit to a physical examination, or to order a
party to produce for examination a person who is in its
custody or under its legal control. It does not provide
authority for the Court to order a defendant to pay for
testing that might substantiate a plaintiff's case. On
motion and for good cause shown,
[t]he 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
Fed. R. Civ. P. 35(a)(1).
purpose of Rule 35 is to allow a movant to request
examination of a party whose mental or physical condition is
in controversy, not for a party to request examination of
himself for purposes of supporting his claim. Plaintiff does
not address who would pay the costs of such an examination.
See Quintana v. Swarthout, No. 2:09- cv-3221 KJM
CKD, 2012 WL 5499872 (E.D. Cal. Nov. 13, 2012); Johnson
v. Cate, No. 1:10-cv-0803-AWI-MJS, 2014 WL 6978324 (E.D.
Cal. Dec. 9, 2014).
Plaintiff is requesting that the California Department of
Corrections and Rehabilitation (“CDCR”) provide a
physician to examine him, he seeks to impose on Defendant the
burden of producing evidence to support Plaintiff's own
case. CDCR's statutory obligation to pay for
Plaintiff's medical care does not impose such an
obligation. Plaintiff has provided no authority for doing so.
court is aware of no authority allowing it to order an
independent medical or mental examination at government
expense for an indigent plaintiff in a civil action.
Plaintiff fails to show good cause for the requested
examination.. See Green v. Branson, 108 F.3d 1296,
1304 (10th Cir. 1997) (denial of indigent prisoner's
request for Rule 35(a) exam affirmed, where his motion
revealed its purpose ...