(PC) Murray v. Aung ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY MURRAY, No. 2:19-cv-2114 JAM AC P 12 Plaintiff, 13 v. ORDER 14 WARDEN, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. 18 § 1983, has filed motion requesting assistance obtaining an evaluation for mental deterioration 19 and focal dysfunction and appointment of counsel due to these symptoms. ECF No. 32. 20 It appears that plaintiff may be attempting to request an independent medical examination 21 under Federal Rule of Civil Procedure 35. Federal Rule of Civil Procedure 35(a) provides that 22 [t]he court where the action is pending may order a party whose mental or physical condition . . . is in controversy to submit to a 23 physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to 24 produce for examination a person who is in its custody or under its legal control. 25 26 However, “Rule 35 does not allow for a physical examination of oneself.” Berg v. Prison Health 27 Servs., 376 F. App’x 723, 724 (9th Cir. 2010) (citing Fed. R. Civ. P. 35; Schlagenhauf v. Holder, 28 379 U.S. 104, 118-19 (1964)); see also Hanna v. Chudy, 2011 WL 2039421, at *1, 2011 U.S. 1 Dist. LEXIS 55972, at *3 (N.D. Cal. May 25, 2011) (collecting district court cases holding same). 2 Furthermore, even if the court were to grant plaintiff’s request for an examination, he would be 3 responsible for the costs associated with the examination because the statute authorizing 4 plaintiff’s in forma pauperis status does not authorize the expenditure of public funds for expert 5 witnesses. See 28 U.S.C. § 1915; Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989) (per 6 curiam) (expenditure of public funds on behalf of indigent litigant is proper only when authorized 7 by Congress); Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 1987) (no provision to pay fees 8 for expert witnesses). The motion will therefore be denied. 9 With respect to plaintiff’s request for the appointment of counsel, the United States 10 Supreme Court has ruled that district courts lack authority to require counsel to represent indigent 11 prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In 12 certain exceptional circumstances, the district court may request the voluntary assistance of 13 counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 14 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 15 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 16 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 17 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 18 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 19 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 20 most prisoners, such as lack of legal education and limited law library access, do not establish 21 exceptional circumstances that would warrant a request for voluntary assistance of counsel. 22 The mere claim that plaintiff suffers from health conditions that may make pursing this 23 case more difficult is not enough to establish exceptional circumstances warranting appointment 24 of counsel. If plaintiff chooses to file another motion for appointment of counsel, he should 25 identify what conditions he suffers from, explain how his conditions prevent him from proceeding 26 without assistance, and provide medical documentation supporting his claimed impairments. 27 //// 28 //// ] Accordingly, IT IS HEREBY ORDERED that plaintiffs motion for an independent 2 | medical examination and appointment of counsel, ECF No. 32, is DENIED. 3 || DATED: July 21, 2021 . ~ 4 CAttt0n— LMMan—e_ 5 ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28