Feaster v. Chambers-Smith

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

TERRANCE FEASTER, : Case No. 1:22-cv-453

:

Plaintiff, :

: District Judge Susan J. Dlott

vs. :

Magistrate Judge Peter B. Silvain, Jr.

:

ANNETTE CHAMBERS-SMITH, et al., :

:

Defendants. :

:

ORDER

This case is before the Court upon Plaintiff’s Motion for Physical Examination (Doc. #45),

Plaintiff’s Letter (Doc. #46), Defendants’ Response in Opposition (Doc. #47), and Plaintiff’s

Reply (Doc. #49).

I. Background

On January 25, 2023, pro se Plaintiff commenced this action by filing claims against five

Defendants, in their individual capacities, related to his incarceration at Southern Ohio

Correctional Facility (“SOCF”). (Doc. #4). Following the Court’s initial review of his Complaint,

Plaintiff’s remaining claims include: 1) failure to protect from harm against Defendant Greg

Holdren, the SOCF safety and health coordinator; 2) inadequate medical treatment or deliberate

indifference to serious medical needs against Defendant David Conley, a nurse practitioner at

SOCF; and 3) due process violations and retaliation against Defendant Linnea Mahlman, an

inspector at SOCF. (Doc. #13).

On July 31, 2024, Plaintiff filed a Motion for Physical Examination requesting an Order

for Plaintiff to submit to a physical examination along with an x-ray “to determine the exact nature

and extent of the injuries in controversy herein.” (Doc. #45, PageID #279). In the affidavit

accompanying the Motion, Plaintiff asserted that “the defendants has (sic) no means of knowing

other than by examination by approved methods, the injuries complained of not being patent or

clearly to be seen without such examination,” and Plaintiff “is without the necessary funds to pay

any expenses for a physical exam and requests all costs be paid at the end of this action and

expenses be accosted to the party court ordered.” (Doc. #45-1, PageID #s 281, 282). Plaintiff did

not cite any procedural authority or case authority in his Motion. A letter filed alongside Plaintiff’s

Motion claimed that a separate physical exam is necessary because of the existing conflict of

interest between Plaintiff and Defendant Conley, the nurse practitioner who would presumably

conduct an on-site examination of Plaintiff at SOCF. (Doc. #46). Additionally, Plaintiff claimed

the Ohio Department of Rehabilitation and Correction “provides the bare minimum of care and do

not offer photographs of the injuries in controversy.” Id. at 285.

In their Response in Opposition to Plaintiff’s Motion for Physical Examination, Defendants

presumed Plaintiff’s Motion was made pursuant to Fed. R. Civ. P. 35(a). (Doc. #47). Defendants

highlighted Plaintiff’s misapplication of this rule and also condemned Plaintiff’s financing request

for the examination. Id.

In Plaintiff’s Reply to Defendants’ Opposition to Plaintiff’s Motion for Physical

Examination, he cited Fed. R. Civ. P. 35(a) and further explained his justification for the

examination which included obtaining x-rays and pictures of his injuries as well as to “provide to

the court, parties, and submit into evidence[,] exhibits that not only identify the injury but give

visible support to plaintiff’s claims.” (Doc. #49, PageID #295).1 Plaintiff also asserted he “suffers

1 Plaintiff also requested a 90-day extension of the discovery deadline that is set to expire on 10/16/24. (Doc. #49.

PageID #297). However, since Plaintiff’s Motion is being denied, a discovery extension is unnecessary.

from toenail fungal (sic)” and “resipiratory (sic) issues/complications” allegedly due to the

conditions at SOCF. Id. at 296.

II. Discussion

Filings from pro se plaintiffs are to be construed liberally. Spotts v. United States, 429

F.3d 248, 250 (6th Cir. 2005). However, the Sixth Circuit has also recognized that liberally

construing filings and pleadings does not mean disregarding “basic pleading essentials in pro se

suits.” Bates v. Ohio Dep't of Rehab., No. 1:22-CV-337, 2023 U.S. Dist. LEXIS 84343, *4 (S.D.

Ohio May 12, 2023) (Litkovitz, M.J.) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

Additionally, while filings are to be construed liberally, this Court has no duty to recharacterize

Plaintiff’s Motion as something other than what it is purporting to be. See Young Bok Song v.

Gipson, 423 F. App’x 506, 510 (6th Cir. 2011) (denying recharacterization of a pro se § 1983

complaint as a habeas corpus petition).

Although Plaintiff did not cite to any statutory or case authority in his Motion, Plaintiff

indicated in his Reply that his Motion was filed pursuant to Fed. R. Civ. P. 35(a). Given Plaintiff’s

affirmative use of the Rule in his Reply, this Court will assess Plaintiff’s Motion by applying Fed.

R. Civ. P. 35(a). See Young Bok Song, 423 F. App’x at 510 (stating that the Court is not obligated

to scrutinize pro se filings “to determine whether there is a cause of action other than the one

pleaded by the plaintiff that is more advantageous to him.”).

Plaintiff’s Motion for Physical Examination is outside the scope of Fed. R. Civ. P. 35(a)

because his Motion requests a physical examination of himself. A motion to submit to a physical

or mental examination is governed by Fed. R. Civ. P. 35(a). Under that Rule, 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.” Fed. R. Civ. P. 35(a)(1). Plaintiff’s

Motion requested an Order requiring Plaintiff to submit to a physical examination along with an

x-ray “to determine the exact nature and extent of the injuries in controversy herein.” (Doc. #45,

PageID #279). While a court may order a party to submit to a physical or mental examination, “a

party may not use Rule 35 to order a physical examination upon himself.” In re Ohio Execution

Protocol Litig., No. 2:11-CV-1016, 2019 U.S. Dist. LEXIS 158984, *19 (S.D. Ohio Sep. 18, 2019)

(Merz, M.J.). See Negron v. Farley, No. 4:12-CV-603, 2012 U.S. Dist. LEXIS 46683, *3 (N.D.

Ohio Apr. 3, 2012) (Adams, D.J.). “Procedurally, the Rule ‘affords an opposing party the

opportunity to conduct an examination of a plaintiff.’” Chandler v. Escobar, No. 4:10-CV-00591,

2010 U.S. Dist. LEXIS 112323, *5 (N.D. Ohio Aug. 20, 2010) (Pearson, M.J.) (quoting Hill v.

DesMarais, No. 2:09-CV-1109, 2010 U.S. Dist. LEXIS 73060, *2 (S.D. Ohio June 28, 2010)

(McCann King, M.J.)) (emphasis added). Thus, Plaintiff’s request for a physical examination of

himself under Fed. R. Civ. P. 35(a) is improper.

Further, Plaintiff does not suggest that he attempted the use of non-judicial methods to

achieve his goals before involving this Court, such as individually requesting a medical

appointment for x-rays at SOCF, requesting a medical exam by a nurse practitioner other than

Defendant Conley, or following up with Defendants as to the status of responses to Plaintiff’s

discovery requests.

The Ohio Department of Rehabilitation and Correction offers prisoners the opportunity to

unilaterally request medical attention for acute medical issues by “complet[ing] a Health Services

Request form and drop[ping] it into a designated Health Services Request collection box at the

institution.”2 Plaintiff seeks a physical examination, x-rays, and photographs of his alleged

injuries. (Doc. #49, PageID #293). While there is no guarantee the medical personnel at SOCF

2 OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, https://drc.ohio.gov/systems-and-services/4-medical-

services (last visited Oct. 2, 2024).

would be receptive to requests for a specific course of treatment since x-rays “or additional

diagnostic techniques or forms of treatment . . . [are] a classic example of a matter for medical

judgment,” Estelle v. Gamble, 429 U.S. 97, 107 (1976), Plaintiff could have attempted to submit

a Health Services Request form requesting x-rays for his alleged medical conditions.

Plaintiff also noted Defendant Conley is currently an Advanced Level Provider at SOCF

and presumed Defendant Conley would conduct an examination if Plaintiff were to be examined

on-site at SOCF. (Doc. #46, PageID #285). Plaintiff stated this would be a conflict of interest

given Defendant Conley’s involvement in this litigation. Id. However, Plaintiff’s Motion did not

indicate whether Plaintiff requested the presence of another medical provider other than Defendant

Conley or if such a request was denied.

In his Reply, Plaintiff seemingly asserted that his Motion also stemmed from Defendants’

failure to produce Plaintiff’s medical records. Plaintiff asserted he “requested his Medical Record

as well as other documents pertaining to prison conditions and renovations via discovery . . . in his

‘SECOND REQUEST FOR PRODUCTION OF DOCUMENTS’ dated 7/21/2024 and 7/29/2024

and has yet to receive a response.” (Doc. #49, PageID #296). However, Plaintiff did not

demonstrate whether he followed up with Defendants as to the status of his discovery request for

his medical records in accordance with S.D. Ohio Civ. R. 37.1 before filing this Motion.

Plaintiff appears to have involved this Court without exploring non-judicial solutions to his

dilemma such as submitting a Health Services Request form for x-rays, requesting to be examined

by a nurse practitioner other than Defendant Conley, or by conferring with Defendants as to the

status of his discovery request pursuant to S.D. Ohio Civ. R. 37.1.

IT IS THEREFORE ORDERED THAT:

Plaintiff’s Motion for Physical Examination (Doc. #45) is DENIED.

November 8, 2024 s/Peter B. Silvain, Jr.

Peter B. Silvain, Jr.

United States Magistrate Judge