Opinion
CV F 06 0102 OWW WMW.
June 13, 2007
ORDER GRANTING MOTION TO COMPEL MENTAL EXAMINATION (DOC 12)
Defendants have filed a motion to compel the mental examination of Plaintiff Jason Torres pursuant to Rule 35 of the Federal Rules of Civil Procedure. The matter was set for hearing on May 25, 2007. On May 23, 2007, a minute order was entered, finding the matter suitable for decision without oral argument, and taking the motion off calendar. Plaintiff has not opposed the motion.
The is a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that he was falsely arrested by Defendant Kings County Sheriff's Deputy Parker in violation of the Fourth Amendment to the U.S. Constitution. Plaintiff also brings claims against Kings County pursuant to Monell v. Dep't of Social Services, 436 U.S. 658 (1978).
The conduct at issue occurred on May 17, 2004. Law enforcement officers, including Defendant Parker, responded to Plaintiff's residence in an attempt to locate a fleeing parolee. During the search of the house, officers ordered Plaintiff to wait outside the house. Plaintiff refused to voluntarily leave the house. For the reasons of Plaintiff's safety, Defendant Parker physically removed Plaintiff from the house and arrested him for a violation of California Penal Code § 148, interfering or obstructing a peace officer in the performance of his duties. Plaintiff alleges that he suffered mental injuries as a result of his arrest.
Defendants bring this motion pursuant to Federal Rule of Civil Procedure 35(a), which authorizes the court to order a party to submit to a mental examination by a suitably licensed or certified examiner. Such an order may be made on a showing of good cause.
Defendants correctly note that when a party asserting mental injury places that injury "in controversy," "good cause" is provided for an examination to determine the existence and extent of the mental injury. Schlagenhauf v. Holder, 379 U.S. 104, 118-119 (1964). "[T]here are situations where the pleadings alone are sufficient to meet these requirements. A plaintiff in a negligence action who asserts mental or physical injury . . ., places that mental or physical injury clearly in controversy and provides the defendant with good cause for the examination to determine the existence and extent of such asserted injury." Id.
In paragraphs seven through nine of the compliant, Plaintiff indicates that he "suffered damage to his person, emotions and well-being . . ." such that "he will be required to incur expenses for professional assistance to protect his legal rights and/or to recover his state of mind existing prior to said actions by Warren Parker . . ." Plaintiff avers that he has suffered humiliation, pain, emotional distress, loss of self esteem, and that Defendants' conduct was engaged in for the specific purpose of causing Plaintiff to "suffer harm to his person or emotions." Compl., ¶¶ 7-9.
Here, the claim for emotional injury is central to Plaintiff's case. Plaintiff specifically claims emotional distress, and his claim for economic damages flows from his emotional injury. Further, Plaintiff has not opposed this motion. Defendants attach as an exhibit the declaration of James Arendt, counsel for defendants. Mr. Arendt details his unsuccessful attempts attempts to contact counsel for Plaintiff regarding the scheduling of a mental examination for Plaintiff.
Defendants attach as an exhibit to their motion a copy of set one of interrogatories propounded upon Plaintiff. In interrogatory number 4, Plaintiff is requested to describe his physical and emotional injuries in detail. Plaintiff indicates that "at the time of the incident, I was scared. Since then, I am emotionally messed up and I am very nervous. I have a hard time sleeping at night due to flash back of subject incident." Plaintiff further indicates in his response to interrogatory number 8 that there are economic damages flowing from his emotional distress. There is no indication that Plaintiff suffered physical injury, or is seeking damages for physical injury. Rule 35(a) limits the examination to whatever limitation is "in controversy." Though Schlagenhauf holds that Plaintiff puts his or her mental or physical condition "in controversy" by claiming injury resulting from defendants' acts, courts disagree on whether a plaintiff puts his or her condition in controversy merely by claiming damages for emotional distress. Jansen v. Packaging Corp. Of America , 158 F.R.D. 409, 410 (N.D. Il. 1994), holding that a claim of emotional distress as a component of damages is enough by itself to put a plaintiff's mental condition "in controversy. Most courts, however require some additional element to place a plaintiff's condition in controversy. See Turner v. Imperial Stores , 161 F.R.D. 89, 92-97 (S.D. Cal. 1995), Bowen v. Parking Authority of City of Camden 214 F.R.D. 188, 194 (D. N.J. 2003). Under this view, a claim that is merely incidental does not place a Plaintiff's condition in controversy. In their motion, Defendants indicate that
Accordingly, IT IS HEREBY ORDERED that Defendants' motion to compel the mental examination of Plaintiff is granted. The examination shall be conducted in accordance with this order.
IT IS SO ORDERED.