Opinion

Jones v. Cuddy

Court
District Court, W.D. Tennessee
Filed
Apr 29, 2019
Cited by
0 cases
Authority
More cited than 29.7%

“[Rule 35] does not permit a party to seek his own medical examination, and a prisoner cannot use Rule 35 as a mechanism for obtaining a second medical opinion when he disagrees with the course of treatment prescribed by prison medical personnel.”

How later courts described this case

  • “[Rule 35] does not permit a party to seek his own medical examination, and a prisoner cannot use Rule 35 as a mechanism for obtaining a second medical opinion when he disagrees with the course of treatment prescribed by prison medical personnel.”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

TOMMY EARL JONES, )

)

Plaintiff, )

)

v. ) No. 13-cv-2942-MSN-tmp

)

STEPHEN CUDDY, M.D., )

)

Defendant. )

ORDER DENYING PLAINTIFF’S MOTION FOR PHYSICAL EXAMINATION

Before the court by order of reference is pro se plaintiff

Tommy Earl Jones’s Motion for Physical Examination. (ECF Nos.

45; 47.) Jones filed the motion on April 15, 2019, and

defendant Stephen Cuddy, M.D., responded (ECF No. 48) on April

26, 2019. For the following reasons, the motion is DENIED.

Jones brings this lawsuit, pursuant to 42 U.S.C. § 1983,

alleging that Dr. Cuddy violated his Eighth Amendment rights.

Jones, who is apparently incarcerated at West Tennessee State

Penitentiary, contends that he spoke to the Warden in November

2013 about his inability to obtain medical treatment and

medication. Jones further alleges that the Warden arranged for

Jones to be treated by Dr. Cuddy. According to Jones, Dr. Cuddy

treated him in 2013 and failed to prescribe the proper

medication to treat Jones’s pain.

In the present motion, which Jones brings under Federal

Rule of Civil Procedure 35, Jones seeks an order requiring a

medical examination of himself. Rule 35(a)(1) provides that a

court “may order a party whose mental or physical condition . .

. is in controversy to submit to a physical or mental

examination by a suitably licensed or certified examiner.”

“[M]any federal courts construing Rule 35 have concluded that

the rule ‘does not vest the court with authority to appoint an

expert to examine a party wishing an examination of himself’ but

applies only where an opposing party moves for the examination.”

Baxter v. Tennessee, No. 10-2667, 2014 WL 2533812, at *2 (W.D.

Tenn. June 5, 2014) (quoting Brown v. United States, 747 F.

App’x 611, 614 (7th Cir. 2003)); Gannaway v. Prime Care Med.,

Inc., 150 F. Supp. 3d 511, 514 n.4 (E.D. Penn 2015) (“[Rule 35]

does not permit a party to seek his own medical examination, and

a prisoner cannot use Rule 35 as a mechanism for obtaining a

second medical opinion when he disagrees with the course of

treatment prescribed by prison medical personnel.”); Christensen

v. United States, No. 5:11-321, 2014 WL 1513140, at *4 (E.D. Ky.

Apr. 16, 2014) (“Rule 35 is a discovery tool designed to permit

an opposing party to conduct a physical or mental examination of

the other party; discovery is not required for a party to obtain

such an examination of him or herself.”). The court finds that,

based on the present record, Jones cannot use Rule 35 as a means

to obtain a court ordered medical examination of himself.

For these reasons, Jones’s motion is DENIED.

IT IS SO ORDERED.

s/ Tu M. Pham

TU M. PHAM

United States Magistrate Judge

April 29, 2019

Date

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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