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Braulick v. Corecivic

United States District Court, D. Montana, Great Falls Division

October 15, 2018

JEREMY JOHN BRAULICK, Plaintiff,
v.
CORECIVIC F/K/A CORRECTIONS CORPORATION OF AMERICA and NURSE DIDIER, [1] Defendants.

          ORDER

          John Johnston United States Magistrate Judge.

         Plaintiff Jeremy Braulick, a prisoner proceeding without counsel, has filed an “Order to Show Cause for an Examination by an Outside Specialist” (Doc. 24), a “Motion to Clarify what He's Suppose to Do” (Doc. 25), a “Motion to Object to Order Denying Plaintiff Appointment of Counsel” (Doc. 28), a “Motion to Request an Extension of Time” (Doc. 29), and a Motion for Leave to File an Amended Complaint (Doc. 30).

         I. Examination by Outside Specialist

         In his document entitled an “Order to Show Cause for an Examination by an Outside Specialist” (Doc. 24), Mr. Braulick asks that he be allowed to be examined by an outside doctor/specialist Rule 35 of the Federal Rules of Civil Procedure. Mr. Braulick seeks an examination by an outside specialist as it pertains to Count IV of his Complaint which alleged that Defendant CCA and its medical staff failed to give Mr. Braulick his thyroid medications on three occasions in 2014 in violation of his Eighth Amendment rights. The Court required CoreCivic f/k/a Corrections Corporation of America to respond to this Monell claim.

         Rule 35 provides, “[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.” Fed.R.Civ.P. 35(a)(1). The Court need not order Mr. Braulick to submit to an examination as he appears fully willing to submit to such an examination. In addition, it has been held that “Rule 35 does not allow for a physical examination of oneself. . . .” Berg v. Prison Health Services, 376 Fed.Appx. 723, 724 (9th Cir. 2010); see also Smith v. Carroll, 602 F.Supp.2d 521, 526 (D. Del. 2009) (stating that Rule 35 “does not vest the court with authority to appoint an expert to examine a party wishing an examination of himself. Instead, under appropriate circumstances, it allows the court to order a party to submit to a physical examination at the request of an opposing party.”). Finally, Mr. Braulick has not demonstrated the ability to pay for the costs of an independent medical examination. See Patton v. Hollingsworth, 2015 WL 1877426, at *1 (D. Nev. April 22, 2015) (“Rule 35 does not authorize [pro se prisoner plaintiff] to seek his own free examination to obtain evidence to prosecute his case.”).

         Rather the Court construes Mr. Braulick's motion as a request made pursuant to Rule 706 of the Federal Rules of Evidence for the appointment of an expert doctor to exam Mr. Braulick. Construed as such, Mr. Braulick's motion will be denied. An expert witness may testify to help the trier of fact determine the evidence or a fact at issue. Fed.R.Evid. 702. The district court has discretion to appoint an expert pursuant to Rule 706(a) of the Federal Rules of Evidence, which reads, in relevant part, “[t]he court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed. . . .” Fed.R.Evid. 706(a); Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999). Appointment of an expert witness may generally be appropriate when “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702.

         Mr. Braulick is a prisoner representing himself in this Eighth Amendment denial of medical care claim. Although he is proceeding in forma pauperis, the in forma pauperis statute, 28 U.S.C. § 1915, does not waive the requirement of the payment of fees or expenses for witnesses in a § 1983 prisoner civil rights action. Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993). Rule 706 contemplates the appointment of an expert to aid the court, not to assist one of the parties. See Trimble v. City of Phoenix Police Dep't, 2006 WL 778697 (D.Ariz. 2006) (citation omitted) (“Reasonably construed, [Rule 706] does not contemplate the appointment of, and compensation for, an expert to aid one of the parties.”).

         Courts do not commonly appoint an expert pursuant to Rule 706 and usually do so only in “exceptional cases in which the ordinary adversary process does not suffice” or when a case presents compelling circumstances warranting appointment of an expert. In re Joint E. & S. Dists. Asbestos Litigation, 830 F.Supp. 686, 693 (E.D.N.Y. 1993); Carranza v. Fraas, 471 F.Supp.2d 8, 9 (D.D .C. 2007). Mr. Braulick made no showing that the evidence or claims here are so complex that the appointment of a court expert is necessary or that this case presents compelling circumstances warranting the appointment of experts. See Carranza, 471 F.Supp.2d at 10; Ledford v. Sullivan, 105 F.3d 354, 359(7th Cir. 1997) (trier of fact's determination of deliberate indifference not so complicated that an expert was required to establish pro se inmate's case). The decision whether or not to admit expert testimony does not rest upon the existence or strength of the expert's opinion but rather, whether the expert testimony will assist the trier of fact in drawing its own conclusion as to a fact in issue. United States v. Rahm, 993 F.2d 1405, 1412 (9th Cir. 1993).

         The court finds that the issues regarding the medical care Mr. Braulick may not have received are not so complex as to require expert testimony to assist the trier of fact. The Court fails to see the value of an examination by an outside specialist based upon three alleged denials of medications in 2014. Further, Mr. Braulick states he needs to be examined by an outside endocrinologist to help him determine if he is currently getting enough of his thyroid medication. As Defendants point out, Mr. Braulick is not longer in Defendants' custody and his current medical treatment is not at issue in this lawsuit. As such, Mr. Braulick failed to establish good cause for an independent medical examination pursuant to Rule 35.

         Lastly, in a civil rights action such as this, Rule 706(b) contemplates that the expert would be paid by the parties, but here defendants would have to bear the entire cost because Mr. Braulick is indigent. There is no showing that it is appropriate or fair to require the defendants to bear the sole burden of paying an expert witness to present plaintiff's point of view.

         The motion for an examination by an outside specialist will be denied. The Court sees no need for a reply brief to be filed on this issue and therefore Mr. Braulick's motion to request an extension of time to file a reply to Defendants' response will be denied. The court's decision not to provide funds for or appoint an expert witness in no way precludes Mr. Braulick from hiring and paying his own expert witness.

         II. Motion for Clarification

         In his second motion, Mr. Braulick seeks clarification of a number of issues. That motion will be granted. Mr. Braulick first seeks clarification regarding the Court's Scheduling Order requirement to file a disclosure statement and provide initial disclosure documents to Defendants. (Doc. 17.) He contends he is exempt from Rule 26(a)(1)(B)(iii). Although Rule 26 of the Federal Rules of Civil Procedure exempts from initial disclosures proceedings brought without an attorney or by a person in custody, that does not prohibit the Court from exercising its discretion to require disclosures by the parties. Mr. Braulick must comply with the Court's Scheduling Order. A failure to do so will result in a recommendation that this matter be dismissed for failure to comply with a Court order.

         Next, Mr. Braulick seeks clarification regarding whether he must include in his disclosures additional copies of documents attached to the Complaint. In compliance with the Court's Paragraph B(A) of the July 27, 2018 Scheduling Order, Mr. Braulick must produce to all responsive documents to Defendants which have not already been produced to ...


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