United States District Court, D. Montana, Great Falls Division
Johnston United States Magistrate Judge.
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).
Examination by Outside Specialist
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.
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.”).
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.
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.”).
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).
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.
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.
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.
Motion for Clarification
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.
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