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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI


SOUTHERN DIVISION
D.H., by and through her next friend
and parent, Robert Holmes PLAINTIFF
VERSUS CIVIL ACTION NO. 1:13cv466-HSO-RHW
MOSS POINT SCHOOL DISTRICT, et al. DEFENDANTS
ORDER
Before the Court is [29] the Defendants motion to compel Rule 35 psychiatric
examination of the Plaintiff, filed August 19, 2014 and [30] memorandum in support of the
motion. Plaintiff filed [32] her memorandum opposing the motion on August 27, 2014, and
Defendants filed [34] their reply on September 3, 2014. Briefing is complete and the matter is
ripe for ruling.
In this lawsuit, Plaintiff alleges Defendants violated her rights by allowing and/or causing
her to be bullied and harassed due to her sexual orientation. Defendants urge that Plaintiff has
put her psychiatric or psychological health at issue by including allegations that she had suicidal
thoughts, attempted suicide, and had a breakdown in class where she expressed suicidal thoughts
and a crisis intervention team was called to the school. Plaintiff contends Defendants conduct
caused her injury for which she is entitled to compensatory damages. Defendants deny liability
for Plaintiffs mental/emotional anguish, and seek to have her examined by Dr. John Thompson,
a licensed psychiatrist who is Director of Forensic Psychiatry at Tulane University, and whom
Defendants plan to designate as an expert witness in the case. Plaintiff responds that her garden
variety allegations of emotional distress do not put her mental state in controversy; that
Defendants have failed to show any good cause for the requested examination; and that
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Defendants motion for Rule 35 examination is premature until Defendants have exhausted less
intrusive means of discovery.
After fully reviewing the motion pleadings, memoranda and applicable law, the Court
finds Plaintiff has affirmatively placed her mental condition in controversy, and good cause
exists for a Rule 35 psychiatric/psychological examination. Although Plaintiff has not alleged a
separate tort claim of intentional or negligent infliction of emotional distress, the allegations of
her complaint do indicate that she attributes to Defendants conduct her suicidal thoughts, her
breakdown in class requiring response by a crisis intervention team, and perhaps even a prior
suicide attempt. Plaintiff also alleges she underwent psychological counseling, regularly met
with a social worker who provided mental health services pursuant to a contract with the School
District, and that mental health providers assessed and reported to the School District regarding
the Plaintiff. The undersigned deems such allegations to be significantly more than garden
variety allegations of emotional distress, and finds these, coupled with Plaintiffs affirmative
allegations of mental or psychological injuries, sufficient to satisfy the requirements of the Rule.
As the Supreme Court noted in Schlagenhauf v. Holder, 379 U.S. 104, 119 (1964), pleadings
alone may suffice to meet the requirements of Rule 35, that a plaintiff who asserts mental or
physical injury places that mental or physical injury clearly in controversy and provides the
defendant with good cause for an examination to determine the existence and extent of such
asserted injury. It is therefore,
ORDERED that (1) immediately upon receipt of this order, Plaintiffs counsel shall
confer with Defense Counsel to arrive at an agreeable date/time/place for the examination of
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Plaintiff, said examination date to be within 30 calendar days of the date of this order; and
(2) Plaintiff shall appear for examination by Dr. Thompson at the agreed time/date/place.
SO ORDERED, this the 8 day of September, 2014.
th
/s/ Robert H. Walker
ROBERT H. WALKER
UNITED STATES MAGISTRATE JUDGE
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