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Prisoner Plaintiffs are not Entitled to Physical Exams or Have Expert Witnesses Paid for by the Court or Defendants

Inmates often request that the court order an independent examination under Fed, Rule Civ. Pro.  35.  That rule provides in pertinent part for an order for a physical or mental examination:

(a) Order for an Examination.

(1) In General. The court where the action is pending may order a party whose mental or physical condition, including blood group, is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control.

However, inmate plaintiffs are not entitled to an independent medical examination under Rule 35 without paying all costs associated with the examination. “Congress has not appropriated any funds for the hiring of expert medical witnesses to support the claims of indigent civil litigants. To the contrary, the Sixth Circuit has consistently held that a prisoner’s right of access to the courts does not entitle a prisoner to have the public fund his general litigation expenses, such as witness fees. See Johnson v. Hubbard, 698 F.2d 286, 28889 (6th Cir.1983); Pedraza v. Jones, 71 F.3d 194, 196 (5th Cir.1995) (district court lacked authority to appoint an expert witness at public expense to aid indigent litigant) and Baker v. County of Missaukee, 2011 U.S. Dist. LEXIS 109372, 10-11 (W.D. Mich. Sept. 26, 2011). Therefore, it is not appropriate for the court to order an independent medical examination under Rule 35 for indigent prisoners at public expense.

Johnson v. Hubbard, 698 F.2d 286, 288-289 (6th Cir. 1983). A key Sixth Circuit case on the subject, stated:

In clarifying the ‘right of access’ the courts have developed a distinction between actual access to the court and procedures essential to the trial process. While allowing potential plaintiffs and defendants access to law libraries and other legal assistance, or the waiver of certain pretrial fees, there is no constitutional requirement to waive costs of transcripts, expert witness fees, and fees to secure depositions.

Therefore, courts are not required to order an examination by a medical expert under Rule 35 in a 42 U.S.C. § 1983 deliberate indifference case.  Saunders v. Tanedo, 1988 U.S. App. LEXIS 11157 at *3 (6th Cir. Ohio 1988); Davis v. Ulep, 1999 U.S. App. LEXIS 1564 (6th Cir. Mich. Jan. 29, 1999).

Other circuits are consistent that neither the Court nor the parties are required to pay for any expert witnesses or examinations under Rule 35.   The Second Circuit, in Malik v. Lavalley, 994 F.2d 90 (2d Cir. N.Y. 1993), explained that the circuits are in agreement that the courts may not pay for experts for indigent parties:

We affirm the judgment of the district court and write in order to bring this Circuit in line with the various other circuits that have held that federal courts are not authorized to waive or pay witness fees on behalf of an in forma pauperis litigant. See, e.g., Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989) (per curiam); Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 1987), cert. denied, 485 U.S. 991, 99 L. Ed. 2d 508, 108 S. Ct. 1298 (1988); McNeil v. Lowney, 831 F.2d 1368, 1373 (7th Cir. 1987), cert. denied, 485 U.S. 965, 99 L. Ed. 2d 435, 108 S. Ct. 1236 (1988); Cookish v. Cunningham, 787 F.2d 1, 5 (1st Cir. 1986) (per curiam); United States Marshals Service v. Means, 741 F.2d 1053, 1056-57 (8th Cir. 1984); Johnson v. Hubbard, 698 F.2d 286, 289-90 v. Hubbard, 698 F.2d 286, 289-90 (6th Cir.), cert. denied, 464 U.S. 917, 78 L. Ed. 2d 260, 104 S. Ct. 282 (1983).  We agree with our sister circuits that no reading of 28 U.S.C. § 1915 supports the contention that Congress authorized the federal courts to waive or pay for Malik’s witness fees.

 The Supreme Court has written in the context of indigent litigants that “the expenditure of public funds is proper only when authorized by Congress.” United States v. MacCollom, 426 U.S. 317, 321, 48 L. Ed. 2d 666, 96 S. Ct. 2086 (1976). Because Congress has not authorized courts to pay an indigent litigant’s witness fees, the district court did not err by refusing to pay Malik’s.  (Emphasis added)

Similarly, the Fifth Circuit in Pedraza v. Jones, 71 F.3d 194, 196-197 (5th Cir. Tex. 1995) addressed the issue of  “whether expert witnesses can be appointed to assist a plaintiff proceeding under the in forma pauperis (‘IFP’) statute, 28 U.S.C. § 1915.”  Noting U.S. Supreme Court has held that indigent defendants are only entitled to public funds when authorized by Congress, United States v. MacCollom, 426 U.S. 317, 321, 96 S. Ct. 2086, 2089, 48 L. Ed. 2d 666 (1976), the Fifth Circuit stated:  “The plain language of section 1915 does not provide for the appointment of expert witnesses to aid an indigent litigant.”  Therefore, the Fifth Circuit concluded that the district court did not err in refusing to grant an expert witness to the Plaintiff, because §1915 makes no provision allowing the district court to pay or waive fees for an expert witness.

Smith v. Yarrow, 78 Fed. Appx. 529 (6th Cir. Ohio 2003) expands on the issue, stating that indigent prisoners cannot expect their discovery efforts to be paid by defendants:

Furthermore, the district court did not abuse its discretion by requiring Plaintiff to fund his own litigation efforts and clarify his discovery requests. A prisoner plaintiff proceeding in forma pauperis may seek a waiver of certain pretrial filing fees, but there is no constitutional or statutory requirement that the government or Defendant pay for an indigent prisoner’s discovery efforts. See Johnson v. Hubbard, 698 F.2d 286, 289 (6th Cir. 1983) (holding that there is no constitutional or statutory requirement to waive an indigent prisoner plaintiff’s costs of discovery). In Giles v. Tate, 907 F. Supp. 1135, 1138 (S.D. Ohio 1995), which Plaintiff cites, the court found that a copying charge of thirty-five cents per page paid in advance violated a prisoner’s constitutional right to access the courts. But the court also found that prisoners do not have a constitutional right to free copying and that ten cents per page is reasonable and does not unconstitutionally impede a prisoner’s access to the courts. Id.

Clearly, prisoner plaintiffs must fund their own litigation, and cannot expect expert or other discovery costs to be borne by the Court or defendants.

Prisoners also try to get an expert witness appointed under Rule 706 of the Federal Rules of Evidence. However, as the Court noted in Baker v. County of Missaukee, 2011 U.S. Dist. LEXIS 109372, 10-11 (W.D. Mich. Sept. 26, 2011), these prisoners “misperceive the purpose of Rule 706. The rule does not provide a method by which the court may afford expert witness testimony to an indigent litigant at public expense. Congress has not appropriated any funds for the hiring of expert medical witnesses to support the claims of indigent civil litigants.”  Instead, the Baker Court noted, “[t]o the contrary, the Sixth Circuit has consistently held that a prisoner’s right of access to the courts does not entitle him to have the public fund his general litigation expenses, such as witness fees”, citing See Johnson v. Hubbard, 698 F.2d 286, 288-89 (6th Cir. 1983), cert. denied, 464 U.S. 917 (1983). and Pedraza v. Jones, 71 F.3d 194, 196 (5th Cir. 1995) (district court lacked authority to appoint an expert witness at public expense to aid indigent litigant).

Baker explains that while Rule 706 “does invest the court with discretion to appoint an expert witness and to apportion the expert’s fees between the parties, if necessary”, it is meant solely as an aid to the court. See Dodson v. Wilkinson, 304 F. App’x 434, 442 (6th Cir. 2008). To invoke rule 706 in a prisoner case, the entire cost would fall on the defendants, as “the only parties with the ability to pay.” An appointment under Rule 706 requires a strong showing that the appointment of a Rule 706 expert is necessary to aid the court.

Finally, there is one avenue for prisoners to obtain expert opinions.  MDOC Policy Directive 03.04.100 HH provides prisoners a procedure for seeking outside medical consultation at the prisoner’s expense. If a prisoner would like an independent medical examination, he must follow the procedures as set forth in the MDOC policy.