Callegari v. Lee et al, No. 3:2008cv02420 - Document 42 (N.D. Cal. 2011)
Court Description: ORDER DENYING 32 MOTION TO DISMISS OR, ALTERNATIVELY, MOTION FOR SUMMARY JUDGMENT; DENYING 28 ; 29 ; 36 PLAINTIFF'S DISCOVERY MOTIONS AND 40 MOTION FOR PHYSICAL EXAMINATION. Signed by Judge Maxine M. Chesney on January 19, 2011. (mmcsec, COURT STAFF) (Filed on 1/19/2011)
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Callegari v. Lee et al Doc. 42 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 For the Northern District of California United States District Court 10 12 13 14 15 ) ) ) Plaintiff, ) ) v. ) ) CHARLES D. LEE, M.D., et al., ) ) Defendants. _______________________________ ) CARL LEE CALLEGARI, ORDER DENYING MOTION TO DISMISS OR, ALTERNATIVELY, MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S DISCOVERY MOTIONS AND MOTION FOR PHYSICAL EXAMINATION (Docket Nos. 28, 29, 32, 36, 40) 16 17 No. C 08-2420 MMC (PR) On May 12, 2008, plaintiff, a California prisoner then incarcerated at Salinas Valley 18 State Prison (“SVSP”) and proceeding pro se, filed the above-titled civil rights complaint 19 pursuant to 42 U.S.C. § 1983, claiming deliberate indifference to his serious medical needs 20 by medical officials at SVSP.1 21 Now pending before the Court is defendants’ motion to dismiss the amended 22 complaint (“AC”) for failure to exhaust administrative remedies or, alternatively, motion for 23 summary judgment. Plaintiff has opposed the motion and defendants have filed a reply. 24 25 Also before the Court are plaintiff’s discovery-related motions and motion for a courtordered physical examination. 26 27 28 1 In April 2010, plaintiff was transferred to Corcoran State Prison, where he currently resides. Dockets.Justia.com 1 For the reasons set forth below, the Court will deny all of the above motions. BACKGROUND 2 3 The following facts are drawn from plaintiff’s verified AC, see Keenan v. Hall, 83 4 F.3d 1083, 1090 n.1 (9th Cir. 1996), amended, 135 F.3d 1318 (9th Cir. 1998) (treating 5 allegations in prisoner’s verified amended complaint as affidavit), as well as plaintiff’s 6 opposition to defendants’ dispositive motion, and plaintiff’s exhibits.2 7 In 2004, plaintiff, while incarcerated at SVSP, was diagnosed with Hepatitis A, B and 8 C. Nine months after his diagnosis, plaintiff was told he would receive “combination 9 therapy” for his Hepatitis. Although, from the date plaintiff was diagnosed, notations were made in plaintiff’s medical records that he tested positive for Hepatitis, plaintiff did not 11 For the Northern District of California United States District Court 10 subsequently receive any treatment therefor. Further, following plaintiff’s diagnosis, various 12 SVSP medical practitioners told plaintiff he does not have Hepatitis and refused to treat him 13 for such condition. Specifically, according to plaintiff, (1) in 2004, Dr. Randolph Gibbs 14 refused to provide plaintiff with combination therapy for Hepatitis treatment; (2) in 2005, 15 Drs. Reynal Cordero, Navneet Adya, Anthony Milanes and Bey Lovevasia refused to provide 16 plaintiff with Hepatitis treatment; (3) in 2006, Dr. Rany Sid refused to provide plaintiff with 17 Hepatitis treatment; (4) in 2007, Drs. Robert Bowman and R. Rodrigues refused to provide 18 plaintiff with Hepatitis treatment, and (5) in 2008, Dr. Sid again refused to provide plaintiff 19 with Hepatitis treatment. (See AC at 3:10-22, 5:1-11.) 20 In 2007, plaintiff filed a medical administrative appeal, asking to be seen by a private, 21 i.e. non-SVSP, doctor, to confirm his Hepatitis diagnosis and for treatment. At the first level 22 of review, Nurse Mejias told plaintiff there was no record of his having Hepatitis. (AC at 23 5:15-22.) Similarly, at the second level of review, Nurse Practitioner Tyler, Dr. K. Brannon 24 and Dr. Charles M. Lee, the Health Care Manager at SVSP, stated there was no evidence in 25 plaintiff’s medical records indicating plaintiff had Hepatitis. (AC at 5:26-6:5.) Dr. Lee, 26 27 2 Defendants argue in their moving papers that plaintiff’s evidence does not support plaintiff’s depiction of the facts, but have not provided a separate statement of facts or other 28 independent evidence in support of their motion. 2 1 however, partially granted plaintiff’s appeal and ordered a new screening test for Hepatitis A, 2 B and C. (AC Ex. A “Memorandum” dated Jan. 15, 2008, at 2.) Plaintiff then filed a third, 3 i.e., Director’s, level appeal, again asking to see a private, non-SVSP doctor. On April 25, 4 2008, N. Grannis, Chief Inmate Appeals Coordinator, denied the appeal on the ground that 5 Dr. Lee already had ordered further testing for plaintiff and that plaintiff had no right to see a 6 private physician under such circumstances. (AC Ex. A “Director’s Level Appeal Decision” 7 dated Apr. 25, 2008.) 8 In 2009, plaintiff filed another round of administrative appeals at SVSP, claiming he Director’s levels of review acknowledged that plaintiff does have Hepatitis and that SVSP 11 For the Northern District of California still was not receiving proper treatment for his Hepatitis. The reviewers at the second and 10 United States District Court 9 doctors were aware of such, but concluded plaintiff had received proper treatment while 12 incarcerated at SVSP. (Opp’n, Ex. E “Memorandum” Second Level Appeal Response dated 13 Jan. 5, 2010; Director’s Level Response dated Apr. 6, 2010.) 14 Claiming he has never received adequate care for his Hepatitis from any doctor at 15 SVSP, and that the nurses and doctors who refused to treat him or grant his appeals 16 intentionally destroyed the medical records showing he has Hepatitis, plaintiff names as 17 defendants each of the SVSP nurses and doctors who told him he does not have Hepatitis and 18 denied him Hepatitis treatment. 19 20 Plaintiff asks the Court to order that he be seen by a private physician; plaintiff also seeks monetary damages. 21 22 23 24 DISCUSSION A. Motion to Dismiss for Failure to Exhaust Administrative Remedies Defendants move to dismiss plaintiff’s claims on the ground plaintiff has failed to exhaust his administrative remedies as required under 42 U.S.C. § 1997(e). 25 1. 26 Non-exhaustion under § 1997e(a) is an affirmative defense; defendants have the Legal Standard 27 burden of raising and proving the absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 28 1119 (9th Cir. 2003). A nonexhaustion defense should be raised in an unenumerated Rule 3 1 12(b) motion. Id. In deciding such a motion, the district court may look beyond the 2 pleadings and decide disputed issues of fact. Id. at 1119-20. If the court concludes the 3 prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the 4 complaint without prejudice. Id. at 1120. 5 2. The Exhaustion Requirement 6 The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 7 (1996) (“PLRA”) provides: “No action shall be brought with respect to prison conditions 8 under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, 9 or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory and not left to the discretion of 11 For the Northern District of California United States District Court 10 the district court. Woodford v. Ngo, 548 U.S. 81, 84 (2006). “Exhaustion gives an agency 12 an opportunity to correct its own mistakes with respect to the programs it administers before 13 it is haled into federal court, and it discourages disregard of [the agency's] procedures.” Id. at 14 89 (internal citation omitted). Section 1997e(a) requires a prisoner-plaintiff to present his 15 claims to each level of administrative review before raising the claims in a § 1983 action in 16 federal court. See id. at 88. 17 The State of California provides its prisoners and parolees the right to appeal 18 administratively “any departmental decision, action, condition or policy perceived by those 19 individuals as adversely affecting their welfare.” Cal. Code Regs. tit. 15, (“CCR”), 20 § 3084.1(a).3 In order to exhaust available administrative remedies within this system, a 21 prisoner must proceed through several levels of appeal: (1) informal review; (2) first formal 22 level appeal, submitted on a CDC 602 inmate appeal form; (3) second formal level appeal, to 23 the institution head or designee; and (4) third formal level appeal, to the Director of the 24 California Department of Corrections and Rehabilitation (“CDCR”). See CCR § 3084.5; 25 Brodheim v. Cry, 584 F.3d 1262, 1264-65 (9th Cir. 2009). A final decision from the 26 Director’s level of review satisfies the exhaustion requirement under § 1997e(a). Id. at 1265; 27 3 28 Unless otherwise noted, all further references to code sections are to title 15 of the California Code of Regulations. 4 1 Barry v. Ratelle, 985 F. Supp. 1235, 1237-38 (S.D. Cal. 1997). 2 An action must be dismissed unless the prisoner first exhausted his available 3 administrative remedies before he filed suit. McKinney v. Carey, 311 F.3d 1198, 1199 (9th 4 Cir. 2002). 5 3. Exhaustion of Remedies 6 Defendants argue plaintiff did not properly exhaust his administrative remedies 7 because plaintiff, before submitting to the Director’s level of review the final grievance in the 8 series of grievances he initiated in 2007, did not follow proper procedural requirements by 9 first submitting a written request to the warden for referral to an outside physician. In opposition, plaintiff asserts he properly submitted such a request for referral to an outside 11 For the Northern District of California United States District Court 10 physician at the both the second and Director’s levels of review, where his request was 12 denied on the merits. 13 The PLRA’s exhaustion requirement cannot be satisfied “by filing an untimely or 14 otherwise procedurally defective administrative grievance or appeal.” Woodford, 548 U.S. at 15 84. Rather, the PLRA requires proper exhaustion. Id. at 92. “Proper exhaustion demands 16 compliance with an agency’s deadlines and other critical procedural rules because no 17 adjudicative system can function effectively without imposing some orderly structure on the 18 course of its proceedings.” Id. at 90-91 (footnote omitted). 19 Compliance with prison grievance procedures is all that is required by the PLRA to 20 properly exhaust. Jones v. Bock, 549 U.S. 199, 217-18 (2007). Consequently, a prisoner, in 21 order to properly exhaust, need only provide in a grievance the level of detail required by the 22 prison’s regulations. Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010). In California, 23 prison regulations require only that an inmate “‘describe the problem and the action 24 requested.’” Id. (quoting CCR § 3084.2(a)). Thus, a grievance suffices if it alerts the prison 25 to the nature of the wrong for which redress is sought. Id. 26 As noted above, plaintiff alleges he was diagnosed with Hepatitis by prison doctors in 27 2004 and told he would be provided with “combination therapy” for the disease, but that he 28 thereafter was denied treatment for several years by SVSP medical personnel who told him 5 1 he did not have Hepatitis. Based on such allegations, plaintiff claims inadequate medical 2 care and asks to be examined by an outside physician and awarded monetary damages. 3 The Court finds plaintiff has presented evidence sufficient to show the grievances he 4 pursued prior to filing the instant action were adequate to put prison officials on notice of the 5 claims for which he seeks redress herein. Specifically, plaintiff has presented evidence that 6 shows the following: In plaintiff’s first level administrative appeal, filed in 2007, he 7 explained that he had been diagnosed with Hepatitis almost four-and-one-half years 8 previously, complained that his requests for treatment were being ignored, and asked to be 9 referred to an outside doctor for a second opinion. (AC Ex. A “Inmate Appeal Form” ¶ A.) When that appeal was denied and plaintiff was told that he must make a written request to the 11 For the Northern District of California United States District Court 10 warden for an outside physician referral, plaintiff filed a second level appeal, expressly 12 asking the warden for such referral. (AC Ex. A “Inmate Appeal Form” ¶¶ E, F.) Plaintiff’s 13 request was acknowledged at the second level and denied; the appeal was partially granted, 14 in that plaintiff’s medical file was reviewed and a new Hepatitis screening test ordered. (AC 15 Ex. A “Memorandum” dated Jan. 15, 2008.) Plaintiff then submitted an appeal to the 16 Director’s level of review, asking to be tested for Hepatitis by an outside doctor because 17 plaintiff did not trust SVSP medical staff. (AC Ex. A. “Inmate Appeal Form” ¶ H.) The 18 appeal was denied on the ground plaintiff’s medical records made no mention of his “ever 19 having any form of Hepatitis” and because he already had been scheduled for a new Hepatitis 20 screening test. (AC Ex. A “Director’s Level Appeal Decision” dated Apr. 25, 2008.) 21 Based on the above, the Court concludes plaintiff’s administrative grievances alerted 22 prison officials to the nature of plaintiff’s complaint that he had requested but was not 23 receiving proper medical attention subsequent to his having been diagnosed with Hepatitis in 24 2004, and that he believed the only way to receive proper treatment was through referral to 25 an outside physician for a second opinion. Further, said grievances, including plaintiff’s 26 request for referral to an outside physician, were not screened out and instead were denied on 27 the merits at both the second and Director’s levels of review. 28 Accordingly, as plaintiff has produced evidence that he properly exhausted his 6 1 administrative remedies, and defendants have failed to meet their burden of raising and 2 proving the absence of exhaustion, defendants’ motion to dismiss the claims against them as 3 unexhausted will be denied. 4 B. Motion for Summary Judgment 5 1. Legal Standard 6 Summary judgment is proper where the pleadings, discovery, and affidavits show 7 there is “no genuine issue as to any material fact and that the moving party is entitled to 8 judgment as a matter of law.” Fed. R. Civ. P. 56(c). Material facts are those that may affect 9 the outcome of the case. See Anderson v. Liberty Lobby, Inc. Anderson, 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if the evidence is such that a reasonable 11 For the Northern District of California United States District Court 10 jury could return a verdict for the nonmoving party. Id. 12 It is the moving party’s burden to establish that no genuine issue of material fact exists 13 and that the moving party is entitled to judgement as a matter of law. British Airways Board 14 v. Boeing Co., 585 F.2d 946, 951 (9th Cir. 1978), cert. denied, 440 U.S. 981 (1979). Where 15 the defendant is the moving party, the court will grant summary judgment against a plaintiff 16 “who fails to make a showing sufficient to establish the existence of an element essential to 17 that [plaintiff’s] case, and on which that party will bear the burden of proof at trial . . . since a 18 complete failure of proof concerning an essential element of the nonmoving party’s case 19 necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322- 20 23 (1986). 21 For purposes of summary judgment, the court must view the evidence in the light most 22 favorable to the nonmoving party; if the evidence produced by the moving party conflicts 23 with evidence produced by the nonmoving party, the court must assume the truth of the 24 evidence submitted by the nonmoving party. Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th 25 Cir. 1999). The court’s function on a summary judgment motion is not to make credibility 26 determinations or weigh conflicting evidence with respect to a disputed material fact. T.W. 27 Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 28 2. Defendants’ Motion for Summary Judgment 7 1 Deliberate indifference to a prisoner’s serious medical needs violates the Eighth 2 Amendment’s proscription against cruel and unusual punishment. See Estelle v. Gamble, 3 429 U.S. 97, 104 (1976). A determination of “deliberate indifference” involves an 4 examination of two elements: the seriousness of the prisoner’s medical need and the nature of 5 the defendant’s response to that need. McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 6 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 7 (9th Cir. 1997) (en banc). A prison official is deliberately indifferent if he knows that a 8 prisoner faces a substantial risk of serious harm and disregards that risk by failing to take 9 reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only “be aware of facts from which the inference could be drawn that a 11 For the Northern District of California United States District Court 10 substantial risk of serious harm exists,” but “must also draw the inference.” Id. 12 Consequently, in order for deliberate indifference to be established, there must exist both a 13 purposeful act or failure to act on the part of the defendant and harm resulting therefrom. See 14 McGuckin, 974 F.2d at 1060. Deliberate indifference may be manifested when prison 15 officials intentionally deny or delay medical care. Estelle v. Gamble, 429 U.S. 97, 104-05 16 (1976). 17 In the instant motion for summary judgment, defendants do not argue that Hepatitis is 18 not a serious medical need. Instead, they move for summary judgment on the ground 19 plaintiff cannot show defendants acted with deliberate indifference to his serious medical 20 needs because “[p]laintiff has submitted zero evidence that he has ever been diagnosed with 21 Hepatitis A, B, or C.” (Mot. to Dismiss or for Summ. J. at 2:19.) Further, defendants 22 maintain they did not act with deliberate indifference in failing to provide plaintiff with 23 additional diagnostic tests and treatment for Hepatitis because, based on their review of 24 plaintiff’s medical records, they have found an absence of evidence that “[any] healthcare 25 provider that has been responsible for the care and treatment of [p]laintiff has ever diagnosed 26 him with Hepatitis A, B, or C ” and, therefore, defendants did not believe that they were 27 required to provide further treatment for him. (Id. at 6:10-14.) 28 Plaintiff, by contrast, argues, and produces evidence to the effect, that his medical 8 aware of such diagnosis and told him he would be treated, and that defendants intentionally 3 failed, for several years, to respond to plaintiff’s requests to confirm his diagnosis and 4 provide him with proper treatment, or, alternatively, refer him to an outside doctor for a 5 second medical opinion. In particular, plaintiff has presented evidence of: (1) laboratory 6 results and medical records from 2004 and 2005, noting plaintiff is infected with Hepatitis 7 (AC Ex. B at 18, 22-27, 29-30, 32); (2) plaintiff’s verified statement that he was told in 2004 8 that he would receive “combination therapy” for his Hepatitis but SVSP doctors subsequently 9 refused, between 2004 and 2008, to accommodate plaintiff’s requests for any treatment for 10 his Hepatitis (AC at 3:10-22, 5:1-11); (3) responses to plaintiff’s administrative appeals in 11 For the Northern District of California records clearly show he was diagnosed with Hepatitis as early as 2004, that defendants were 2 United States District Court 1 2007 and 2008, expressly telling plaintiff there is no evidence in his medical records that he 12 was ever told he has Hepatitis (AC Ex. A at 8-13); (4) laboratory results of blood tests taken 13 in 2010 showing plaintiff is infected with Hepatitis (Opp’n Ex. D at 78-79); and 14 (5) responses to administrative appeals filed by plaintiff in 2009 and 2010, acknowledging 15 plaintiff has Hepatitis and stating he received proper treatment for such condition when at 16 SVSP (Opp’n Ex. E at 83-88). 17 In response, defendants argue that, contrary to plaintiff’s assertions that the evidence 18 shows his medical needs were not properly addressed, plaintiff’s evidence supports 19 defendants’ contention that they did not act with deliberate indifference, because the medical 20 records show plaintiff was treated on numerous occasions by SVSP doctors for his medical 21 concerns and that plaintiff has misinterpreted the information pertaining to his Hepatitis 22 diagnosis and treatment. Although defendants correctly note that plaintiff’s evidence shows 23 he was seen repeatedly by SVSP doctors for various medical complaints, there is no merit to 24 defendants’ argument that the medical records produced by plaintiff show plaintiff is 25 mistaken about his Hepatitis diagnosis and treatment, or that he received appropriate care for 26 such disease.4 Rather, taking plaintiff’s allegations as true, and construing all evidence in the 27 28 4 As noted, defendants have not supported their motion with medical records or other evidence pertaining to plaintiff’s diagnosis and treatment. 9 1 light most favorable to him, the Court finds a reasonable inference can be drawn that 2 defendants acted with deliberate indifference to plaintiff’s serious medical needs. 3 Specifically, plaintiff has produced sufficient evidence to raise a triable issue as to whether 4 he was diagnosed with Hepatitis in 2004, whether defendants were aware of such diagnosis, 5 and whether defendants unreasonably failed to respond to plaintiff’s repeated requests for 6 follow-up testing, appropriate treatment, and a second medical opinion. 7 Accordingly, as defendants have failed to carry their burden of demonstrating the indifference to plaintiff’s serious medical needs, defendants’ alternative motion for summary 10 judgment will be denied. As set forth at the conclusion of this order, defendants shall inform 11 For the Northern District of California absence of a genuine issue of material fact with respect to whether they acted with deliberate 9 United States District Court 8 the Court whether they intend to file a renewed motion for summary judgment or, instead, 12 will proceed directly to settlement proceedings. 13 C. 14 15 16 Qualified Immunity Defendants, in addition to the above-described argument that no constitutional violation occurred, argue they are entitled to qualified immunity. The defense of qualified immunity protects “government officials . . . from liability 17 for civil damages insofar as their conduct does not violate clearly established statutory or 18 constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 19 457 U.S. 800, 818 (1982). A court considering a claim of qualified immunity must determine 20 (1) whether the plaintiff has alleged the deprivation of an actual constitutional right and (2) 21 whether such right was clearly established such that it would be clear to a reasonable officer 22 that his conduct was unlawful in the situation he confronted. Pearson v. Callahan, 129 S. Ct. 23 808, 818 (2009). The court may exercise its discretion in deciding which prong of the test to 24 address first, in light of the particular circumstances of the case. Id. “If there are genuine 25 issues of material fact in issue relating to the historical facts of what the official knew or 26 what he did,” such questions of fact are for the jury to determine, and, consequently, 27 summary judgment on the issue of qualified immunity cannot be granted. Sinaloa Lake 28 Owners Assn. v. City of Simi Valley, 70 F.3d 1095, 1099 (9th Cir. 1995). 10 Here, as discussed above, there are genuine issues of material fact relating to the 1 2 historical facts of what defendants herein knew and did regarding plaintiff’s Hepatitis 3 diagnosis and requests for treatment, such that it is not possible to say on summary judgment 4 that a reasonable doctor or prison official would have thought it was constitutional to deny 5 plaintiff the testing and treatment he requested. Accordingly, defendants’ motion for 6 summary judgment on grounds of qualified immunity will be denied. 7 D. Plaintiff’s Discovery-Related Motions 8 Prior to filing his opposition to defendants’ dispositive motion, plaintiff filed a motion 9 to compel discovery, as well as several other discovery-related motions, asserting defendants had failed to provide him with requested discovery that he required in order to prepare his 11 For the Northern District of California United States District Court 10 opposition to defendants’ motion. Defendants have not responded to plaintiff’s motion to 12 compel or to his other discovery-related motions. 13 In view of the Court’s ruling that, based on the evidence presented by plaintiff, 14 defendants’ motion to dismiss or, alternatively, motion for summary judgment, will be 15 denied, plaintiff’s motion to compel, as well as his other discovery-related motions, will be 16 denied without prejudice as moot. Once defendants inform the Court as to whether they 17 intend to file a renewed motion for summary judgment or, instead, will proceed directly to 18 settlement proceedings, the Court will set a schedule for the parties to engage in further 19 discovery. 20 E. 21 22 23 24 Plaintiff’s Motion for a Court-Ordered Physical Examination Plaintiff moves, pursuant to Rule 35 of the Federal Rules of Civil Procedure, for a court order directing he be given a physical examination. Rule 35 provides, in relevant part: 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. 25 Fed. R. Civ. P. 35(a)(1). Plaintiff argues he requires a physical examination because 26 defendants have refused to acknowledge he was diagnosed with Hepatitis in 2004 and 2010. 27 Although a district court, pursuant to Rule 35, may, under appropriate circumstances, 28 order a party to submit to a physical examination at the request of an opposing party, Rule 35 11 1 “does not vest the court with authority to appoint an expert to examine a party wishing an 2 examination of himself.” Smith v. Carroll, 602 F. Supp.2d 521, 526 (D. Del. 2009); see, e.g., 3 Baker v. Hatch, 2010 WL 3212859 at * 3 (E.D. Cal. 2010) (finding no authority under Rule 4 35(a) to grant pro se prisoner plaintiff’s request for medical examination); Adams v. Epps, 5 2008 WL 4861926 at *1 (S.D. Miss. 2008) (same); Cabrera v. Williams, 2007 WL 2682163 6 at *2 (D. Neb. Sept .7, 2007) (same). 7 Accordingly, plaintiff’s request for a court-ordered physical examination pursuant to 8 Rule 35 will be denied. Plaintiff is not precluded, however, from retaining his own expert 9 medical witness to examine plaintiff and render a medical opinion. CONCLUSION 11 For the Northern District of California United States District Court 10 For the reasons stated above, the Court orders as follows: 12 1. Defendants’ motion to dismiss, or, alternatively, for summary judgment, is hereby 13 14 DENIED. 2. Within thirty days from the date this order is filed, defendants shall inform the 15 Court and plaintiff whether they will file a renewed motion for summary judgment or, 16 instead, whether the matter shall be referred for settlement proceedings. 17 18 3. Plaintiff’s motion to compel discovery and other discovery-related motions are hereby DENIED without prejudice. 19 4. Plaintiff’s motion for a court-ordered physical examination is hereby DENIED. 20 This order terminates Docket Nos. 28, 29, 32, 36 and 40. 21 IT IS SO ORDERED. 22 23 24 DATED: January 19, 2011 _________________________ MAXINE M. CHESNEY United States District Judge 25 26 27 28 12
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