495 F.2d 839 (2nd Cir. 1974), 883, Winters v. Travia

Docket Nº:883, 74-1163.
Citation:495 F.2d 839
Party Name:Miriam WINTERS, on behalf of herself and all other persons simsilarly situated, Petitioner, v. Hon. Anthony J. TRAVIA, United States District Judge, Respondent. Miriam WINTERS, on behalf of herself and all other persons similarly situated, Petitioner, v. Alan D. MILLER, M.D., Individually and as Commissioner of Mental Hygiene of the State of New Yo
Case Date:April 01, 1974
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 839

495 F.2d 839 (2nd Cir. 1974)

Miriam WINTERS, on behalf of herself and all other persons simsilarly situated, Petitioner,

v.

Hon. Anthony J. TRAVIA, United States District Judge, Respondent.

Miriam WINTERS, on behalf of herself and all other persons similarly situated, Petitioner,

v.

Alan D. MILLER, M.D., Individually and as Commissioner of Mental Hygiene of the State of New York, et al., Respondents.

No. 883, 74-1163.

United States Court of Appeals, Second Circuit.

April 1, 1974

Argued Feb. 13, 1974.

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Jonathan A. Weiss, New York City (Bruce J. Ennis, New York Civil Liberties Union, New York City, on the brief), for petitioner.

Joel H. Sachs, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the State of New York, of counsel), for respondents Miller and O'Neill.

Before ANDERSON, MANSFIELD and OAKES, Circuit Judges.

PER CURIAM:

This petition for a writ of mandamus or prohibition, 28 U.S.C. § 1651(a), was brought by the plaintiff in a civil rights action to recover damages allegedly sustained as a result of forced medication administered her in 1968 in violation of her first amendment right to freedom of religion. 1 The trial court, in an oral ruling from the bench on January 11, 1974, later confirmed in an order signed January 22, 1974, ordered a physical and mental examination of plaintiff to take place at Brooklyn State Hospital and stayed all further proceedings until the results of the test. She likewise objects to this examination on religious grounds, and points out that her 'physical condition is not and has never been involved in this case.' Beyond this, on oral argument before us plaintiff's counsel was willing to and did represent and agree that the only present mental problem of plaintiff allegedly caused by the 1968 forced medication is 'an unpleasant memory,' this memory going to show the severity of the past suffering. Thus plaintiff is willing to abandon any claim that any present or anticipated physical or mental

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disability or condition was caused by the 1968 treatment on which her case is based. 2 Under these circumstances we do not see what purpose could be served by a Rule 35 examination which under its own terms may be ordered only 'when the mental or physical condition . . . of a party . . . is in controversy . . ..' Moreover, while the underlying constitutionality of Rule 35 is not in question, as it was in Sibbach v. Wilson & Co., 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479 (1941) (5-4 decision), and Schlagenhauf v. Holder, 379 U.S. 104, 114, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), and while Rule 35 is not limited in application to actions for personal injuries, Beach v. Beach, 72 U.S.App.D.C. 318, 114 F.2d 479 (1940); but cf. Wadlow v. Humberd, 27 F.Supp. 210 (W.D.Mo.1939), the required showing of 'good cause' for the examination and that the condition of the party be 'in controversy' are not mere formalities. Schlagenhauf v. Holder, 379 U.S. at 118, 85 S.Ct. 234, 13 L.Ed.2d 152. This case is like Coca-Cola Bottling Co. v. Torres, 255 F.2d 149, 153 (1st Cir. 1958), where, in a suit for damages for injuries sustained by drinking from a bottle containing the proverbial putrefied mouse, the court upheld denial of a physical examination on the basis that the plaintiff was not seeking damages for any present suffering but only for past physical injury and emotional disturbance, the remembrance of the bad taste going only toward showing the severity of that plaintiff's past suffering. Mandamus lies here to correct an abuse of discretion in ordering the examination, Schlagenhauf v. Holder, 379 U.S. at 110, 85 S.Ct. 234, 13 L.Ed.2d 152, under the 'special' circumstances of this case. 3

It is true that petitioner here sought a protective order against the taking of her deposition because of the mental anguish it would allegedly cause. This does not, however, by itself place her mental condition in controversy; whether the court will grant or deny the protective order (seeking primarily to have her deposition taken by written interrogatories) has not yet been determined and is not, therefore, a consideration presently before this court.

Petitioner also argues that the case should be transferred to a district judge other than the one who dismissed her claim in the first instance. Even though Rule 34 of the General Rules of the United States District Courts for the Southern and Eastern Districts of New York provides for conduct of proceedings by the original judge if the proceedings do not require the trial of an issue of fact, we are reluctant to read it as per se disqualifying the judge in cases where there is an issue of fact to be tried, and we are reluctant to exercise our undoubted power for transfer except under the most compelling circumstances. See Meetings & Expositions, Inc. v. Tandy Corp., (2d Cir. 1974), 490 F.2d 714, 715; Taylor v. United States, 487 F.2d 307 (2d Cir. 1973). Here the judge was requested to transfer the case to an another judge and, petitioner's counsel's affidavit alleges, the judge granted the motion for a physical and mental examination without 'bothering' to read the arguments and authorities in a brief submitted apparently the day before the hearing. 4 If

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this indeed took place, and without reason or justification, such judicial conduct is the very kind of thing that calls to mind Farrer Herschell's well-known retort at the Bar when Sir George Jessel attempted to cut him short in argument: 'Important as it was that people should get justice, it was even more important that they should be made to feel and see that they were getting it.' 2 J. Atlay, Victorian Chancellors 460 (1908). On remand, doubtless, the district judge will give very serious consideration to whether transfer would not serve the appearance of justice and thereby help assure its existence.

Petition for mandamus granted and cause remanded for proceedings consistent herewith.

MANSFIELD, Circuit Judge...

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