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Malik Muhammad v. Lester Wright

April 15, 2011

MALIK MUHAMMAD, PLAINTIFF,
v.
LESTER WRIGHT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

96-A-3015,

DECISION AND ORDER

Currently before the Court are the following motions:

1. plaintiff's motion for an Order directing that a physical examination of a "medication bag" be conducted and an expert appointed to conduct the examination (Dkt. #44);

2. plaintiff's motion to take the "depositions [sic] upon written questions" of an unidentified male neurologist employed by Buffalo General Hospital in March 2008 (Dkt. #45);

3. plaintiff's motion to compel discovery (physical features of medicine bag used on March 10, 2008] (Dkt. #50); and

4. plaintiff's motions to call an expert witness (Dkt. ##54 and 60).

In his complaint, plaintiff alleges that he has been denied appropriate medical treatment for his serious medical condition. Dkt. #1. Plaintiff alleges that in April 2003 he was diagnosed with multiple sclerosis and has been receiving treatment for the disease since that time. Id. at p.3. Specifically, plaintiff further alleges that on March 10, 2008, defendants reduced the dosage of his intravenous steroid medication that he was scheduled to receive on that day. Dkt. #1, pp.4-5.

Physical Examination of "Medication Bag"

In his motion seeking, inter alia, to have this Court order the physical examination of a "medication bag," plaintiff states,

1. To have, the one (oz) ounce medication bag be produced at such hearing for physical examination purposes. Moreover, a color photo and/or physical diagram of such medication bag must be provided to plaintiff as well. 2. Additionally, the maker (manufacture) [sic] of such medication bag also shall be provided to plaintiff by name and address and person responsible for such manufacturing products. The examiner appointed/assigned to perform such physical examination report(s) must be in writing and must set put in detail the examiner's conclusions.

Dkt. #44. Defendants filed opposition to the motion. Dkt. #48. The instant motion is reminiscent of plaintiff's prior motions seeking the appointment of a medical expert pursuant to Rule 706 of the Federal Rules of Evidence (Dkt. #8) and seeking a physical examination for plaintiff pursuant to Rule 35 of the Federal Rules of Civil Procedure with respect to his diagnosis and treatment of multiple sclerosis. Dkt. #17. This Court denied plaintiff's prior motion seeking the appointment of an expert witness on the grounds that, "[a]t this early stage of the proceeding, there is no basis for the Court to believe that plaintiff's claim of denial of adequate medical care cannot be grasped without the assistance of an appointed medical expert." Dkt. #10. Moreover, the Court denied plaintiff's motion seeking a physical examination on the grounds that, "Rule 35 does not authorize a party to file a motion for his own physical examination and this Court has previously denied plaintiff's motion for an expert witness." Dkt. #30.

Here, relying once again on Rule 35, plaintiff seeks an Order directing a physical examination of a "medication bag," the name and address of the manufacturer of the medication bag and a written report from an examiner to be appointed by the Court to examine the "medication bag" setting forth the examiner's conclusions. Dkt. #44. Rule 35(a)(1) and (2) of the Federal Rules of Civil Procedure provides, in pertinent part:

(1) The court where the action is pending may order a party whose mental or physical condition ... is in controversy to submit to a physical or mental examination by ...


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