Williams v. Gomez et al
Filing
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ORDER signed by Magistrate Judge Edmund F. Brennan on 11/8/11 ORDERING that 23 plaintiffs motion for default judgment, and plaintiff's 28 motion for a medical examination are DENIED. (Kastilahn, A)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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LONNIE WILLIAMS,
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Plaintiff,
vs.
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No. CIV S-11-0426 GEB EFB P
GOMEZ, et al.,
Defendants.
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ORDER
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42
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U.S.C. § 1983. Defendants have filed a motion to dismiss or in the alternative to order plaintiff
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to pay the filing fee.1 Dckt. No. 21. Plaintiff has filed a motion for default judgment, which the
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court also construes as an opposition to defendants’ motion to dismiss, and a motion for a
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medical examination. Dckt. Nos. 23, 28.
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I.
Motion for Default
Plaintiff argues that default should be entered against defendants because they filed a
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motion to revoke her in forma pauperis status instead of filing an answer to the complaint. Dckt.
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No. 23.
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The court will issue a ruling on this motion at a later date.
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Federal Rule of Civil Procedure 55 states:
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When a party against whom a judgment for affirmative relief is sought has failed
to plead or otherwise defend, and that fact is shown by affidavit or otherwise, the
clerk must enter the party’s default.
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Here, defendants timely filed a motion to revoke plaintiff’s in forma pauperis status and
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dismiss the case, or in the alternative, order plaintiff to pay the filing fee. See Dckt. No. 21. By
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so doing, defendants showed their intention to appear and defend the suit. See Benny v. Pipes,
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799 F.2d 489, 492 (9th Cir. 1986) (“An appearance ordinarily is an overt act by which the party
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comes into court and submits to the jurisdiction of the court. This is an affirmative act involving
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knowledge of the suit and an intention to appear.”). Accordingly, defendants complied with Rule
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55, and plaintiff’s motion for entry of default is denied.
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II.
Motion for Medical Examination
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Plaintiff has filed a motion asking that the court provide her with a full medical
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examination so that she can be tested for arsenic and other poisons. Rule 35(a) provides that a
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court may “order a party whose mental or physical condition . . . is in controversy to submit to a
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physical or mental examination by a suitably licensed or certified examiner.” But Rule 35 does
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not give the court authority to appoint an expert to examine a party on his or her own motion.
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Brown v. United States, 74 Fed. App’x 611, 614 (7th Cir. August 11, 2003); Adams v. Epps,
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2008 WL 4861926 at *1 (S.D. Miss.2008) (“Rule 35 ‘does not vest the court with authority to
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appoint an expert to examine a party wishing an examination of himself.’ ”). See also Cabrera v.
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Williams, 2007 WL 2682163 at *2 (D. Neb. Sept 7, 2007) (denying prisoner’s request for
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medical examination under Rule 35); Lindell v. Daley, 2003 WL 23111624 at *1-2 (W.D.Wis.
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June 30, 2002) (Rule 35 allows the court to “order plaintiff to submit to an examination at the
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request of the opposing party. . . . The rule is not intended to cover a situation such as the one
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here, where plaintiff wishes an examination of himself.”).
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Thus, the rule provides no authority for the court to order a physical examination of
plaintiff. Plaintiff’s motion for an examination is therefore denied.
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III.
Conclusion
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Accordingly, it is hereby ORDERED that:
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1. Plaintiff’s motion for default judgment, Dckt. No. 23, is denied.
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2. Plaintiff’s motion for a medical examination, Dckt. No. 28, is denied.
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DATED: November 8, 2011.
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