ORDER DENYING DEFENDANT'S RULE 35 MOTION FOR A MENTAL EXAMINATION OF THE PLAINTIFF
[ECF No. 41]
JILL L. BURKHARDT, Magistrate Judge.
On October 31, 2014, Defendant City of San Diego ("Defendant") filed a Rule 35 Motion for a Mental Examination of the Plaintiff, along with a declaration of Dr. Dominick Addario. (ECF No. 41.) Plaintiff Jack Robertson ("Plaintiff") filed an Opposition (ECF No. 44), and Defendant filed a Reply (ECF No. 47). For the reasons set forth below, Defendant's Motion is DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Jack Robertson, a California resident with physical disabilities, filed a Complaint on June 25, 2013. The Complaint alleges lack of physical accessibility for persons with disabilities to the La Jolla Children's Pool, located in La Jolla, California. (ECF No. 1.) The Complaint further provides:
The only method of access from the public streets and right of way to the La Jolla Children's Pool beach is by a flight of stairs. There is no accessible path of travel for persons with disabilities. Each time that the plaintiff has swum at the Children's Pool, he has been bodily carried down the stairs by others. This is scary, frustrating, discomforting, embarrassing and difficult. Additionally, the plaintiff is unable to independently gain access to the beach. The lack of access and the inaccessible paths of travel have precluded the plaintiff from enjoying the Children's Pool beach on a full and equal basis.
(Id. at 3.) The Complaint sets forth two causes of action: (1) violation of American's With Disabilities Act; and (2) violation of California Disabled Persons Act. (Id. at 1.)
On March 25, 2014, Plaintiff filed a Motion for Leave to File a First Amended Complaint. (ECF No. 17.) On May 21, 2014, United States District Judge Thomas J. Whelan denied Plaintiff's Motion. (ECF No. 23.) On October 31, 2014, Defendant filed the instant Motion, seeking an order from this Court requiring Plaintiff to submit to a mental examination by the Defendant's psychiatric expert, Dr. Dominick Addario. (ECF No. 41.)
II. LEGAL STANDARDS
Federal Rule of Civil Procedure 35(a) provides that a Court may order a medical examination if a litigant's physical or mental condition is "in controversy" and there is a showing of good cause. "Rule 35 is to be `construed liberally to allow the examination.'" Sanders v. Holdings, No. 11cv1590 LAB (MDD), 2012 WL 2001967, at *2 (S.D. Cal. June 4, 2012) (citing Tan v. City and Cnty. of S.F., No. C 08-01564 MEJ, 2009 WL 594238, at *2 (N.D. Cal. Mar. 4, 2009)). When ordering an examination, the Court "must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it." Fed. R. Civ. P. 35(a)(2)(B).
"A plaintiff's mental or physical condition is `in controversy' when such condition is the subject of the litigation." Hernandez v. Simpson, No. ED CV 13-2296-CBM (SPx), 2014 WL 4090513, at *2 (C.D. Cal. Aug. 18, 2014) (citing Gavin v. Hilton Worldwide, Inc., 291 F.R.D. 161, 164 (N.D. Cal. 2013)). In determining whether a litigant's mental state is "in controversy," courts in this district apply the test outlined in Turner v. Imperial Stores, 161 F.R.D. 89, 95 (S.D. Cal. 1995).
In Turner, the Court held that a mental examination may be ordered when one or more of the following circumstances are present:
1) a cause of action for intentional or negligent infliction of emotional distress; 2) an allegation of a specific mental or psychiatric injury or disorder; 3) a claim of unusually severe emotional distress; 4) plaintiff's offer of expert testimony to support a claim of emotional distress; and/or 5) plaintiff's concession that his or her mental condition is `in controversy' within the meaning of Rule 35(a).
Id. "In assessing whether `good cause' exists, courts have considered `the possibility of obtaining desired information by other means, whether plaintiff plans to prove her claim through testimony of expert witnesses, whether the desired materials are relevant, and whether plaintiff is claiming ongoing emotional distress.'" Conforto v. Mabus, No. 12cv1316 W (BLM), 2014 WL 3407053, at *3 (S.D. Cal. July 10, 2014) (quoting Juarez v. Autozone Stores, Inc., No. 08cv417 L (BLM), 2011 WL 1532070, *1 (S.D. Cal. Apr. 21, 2011)).
III. DISCUSSION
In its Motion, Defendant seeks a Court order compelling Plaintiff to undergo a mental examination. Defendant argues that "Plaintiff's mental condition is at issue because Plaintiff intends to seek emotional distress damages allegedly caused by the City for repeated violations of the Americans with Disabilities Act." (ECF No. 41 at 1.) Plaintiff opposes the Motion, arguing that he has not put his mental condition at issue and that Defendant has failed to show that good cause exists for the examination. (ECF No. 44.)
A. Whether Plaintiff's Mental Condition Is "In Controversy"
In arguing that Plaintiff has put his mental condition at issue, Defendant states:
Since 1997, the Plaintiff has experienced approximately 100 instances of anger, anxiety, nervousness, and feelings of discrimination allegedly caused by the City's failure to provide him access to Children's Pool Beach. His longstanding emotional problems are now compounded by his disappointment at the City for its alleged failure to install an access ramp in conjunction with the construction of a new Lifeguard Station at the Pool. Due to the duration of Plaintiff's emotional distress-occurring over four decades-Plaintiff is seeking damages for more than just hurt feelings or lingering resentment.
(Id. at 6.) Defendant claims that a mental examination is necessary for the City to defend itself. (Id.)
To determine if Plaintiff's mental condition is in controversy, the Court must evaluate the five Turner factors set forth above. Under the first factor, Plaintiff has not alleged a cause of action for intentional or negligent infliction of emotional distress. (See ECF No. 1.) Under the second factor, Plaintiff has not alleged that he suffers from a specific mental or psychiatric injury or disorder. To the contrary, Plaintiff has "repeatedly testified that at no point did he ever feel the need to obtain psychiatric treatment for any of the various emotions he felt as a result of Defendant's [alleged] discrimination...." (ECF No. 44 at 3-4.) Under the fourth factor, "Plaintiff has not offered, and does not plan to offer[,] any expert testimony to support his emotional distress claim." (Id. at 5.) As to the fifth factor, Plaintiff does not concede that his mental condition is in controversy. (See ECF No. 44.)
Defendant relies solely on the third Turner factor, arguing that Plaintiff's emotional distress is unusually severe. Defendant claims that Plaintiff's distress is not "garden variety" emotional distress because Plaintiff has suffered over 100 instances of negative feelings within a time period spanning four decades. (ECF No. 41 at 5-6, citing Ortiz v. Potter, 2010 WL 796960 at *3 (E.D. Cal. Mar. 5, 2010).) Plaintiff argues that "he has suffered nothing more than the natural feelings of abandonment, difficulty, and anger that normally flow from acts of discrimination." (ECF No. 44 at 5.)
The Court finds Defendant's argument unpersuasive. Plaintiff's emotional distress can best be characterized as "garden variety." "Garden variety [claims are] claims of generalized insult, hurt feelings, and lingering resentment [that] do not involve a significant disruption of the plaintiff's work life and rarely involve more than a temporary disruption to the claimant's personal life." Ortiz, 2010 WL 796960 at *3.
While Plaintiff experienced frustration and disappointment with each instance of the alleged discrimination, it cannot be said that Plaintiff suffers from "longstanding emotional problems" as argued by the Defendant. (ECF No. 41 at 6.) Furthermore, Plaintiff has stated that he did not seek professional treatment for the distress he experienced and that he was able to "alleviate [the distress] by [his] own coping mechanisms." (Id. at 5.) Under Turner, "garden-variety" emotional distress alone is insufficient to place a party's mental state in controversy because "Rule 35(a) was not meant to be applied in so broad a fashion as to allow courts to order a mental examination whenever a plaintiff claimed emotional distress." Tan, 2009 WL 594238 at *1.
Given that none of the five Turner factors are implicated in the instant case, the Court finds that Defendant has failed to establish that Plaintiff's mental condition is in controversy.
B. Whether Defendant Has Established Good Cause
Federal Rule of Civil Procedure 35(a) provides that a Court may order a medical examination if a litigant's physical or mental condition is "in controversy" and there is a showing of good cause. Because Plaintiff's mental condition has not been placed in controversy, the Court finds that Defendant has failed to meet the standard for compelling an examination.
IV. CONCLUSION
For the reasons addressed above, Defendant's Rule 35 Motion For A Mental Examination of the Plaintiff is DENIED.
IT IS SO ORDERED.
