Womack v. GEO Group Incorporated et al

Filing 56

ORDER denying 40 Plaintiff's Motion to Appoint Expert. Signed by Magistrate Judge Lawrence O Anderson on 6/3/13.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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John Doneld Womack,
Plaintiff,

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vs.

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The GEO Group, Inc.,

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Defendant.
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No. CV-12-1524-PHX-SRB (LOA)
ORDER

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Pro se Plaintiff moves the Court to appoint an expert witness “to analyze health
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effects and harm on inmates by being required to live under constant illumination by
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Defendant GEO Group[.]” (Doc. 40 at 1) Plaintiff represents he “lacks funds or means of
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securing funds to retain an expert[.]” (Id.) Plaintiff cites Rules 702 and 706, Federal Rule
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of Evidence (“Fed.R.Evid.”); Steele v. Shah, 87 F.3d 1266, 1270-71 (11th Cir. 1996)
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(remanding motion to appoint counsel and expert to district court where “district court gave
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no explanation for the refusal to appoint [counsel and expert]”); and Beard v. Banks, 548
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U.S. 521, 534 (2006) as authority to support his request. Defendant GEO Group has not
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responded to this Motion. For the reasons discussed below, Plaintiff’s Motion to Appoint
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Expert to Analyze Health Effects and Harm of Constant Illumination will be denied.
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I. Background
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At the time he filed this Section 1983 action on July 16, 2012, pro se Plaintiff was an
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inmate confined in the Central Arizona Correctional Facility (“CACF”), a private
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correctional facility owned and operated by Defendant GEO Group, which has contracted

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with the State of Arizona to incarcerate prisoners.

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In the First Amended Complaint, Plaintiff alleged that, since approximately 2009,

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the GEO Group has maintained the prison dorms in which Plaintiff was housed with

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“constant illumination” by four large fluorescent lights that brightly illuminated his living

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area and bed “24 hours a day.” (Doc. 8, ¶¶ 4-8 at 3-4) He also asserts that the GEO Group

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instituted a practice of its staff members awakening inmates who attempt to block the light

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by covering their heads at night. Plaintiff contends the constant, bright illumination of his

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cell deprived him of normal sleep and rest; caused him to suffer headaches, sleep disorders,

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placed “out of sync” his internal sleep clock; and rendered him too sleepy and fatigued to

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participate in basic daily activities. In Count One, Plaintiff alleged the GEO Group has

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violated his Eighth Amendment rights under the United States Constitution and was

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deliberately indifferent to Plaintiff’s “basic right to shelter” that caused him harm and

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threatened his mental and physical well-being. (Id.¶ 1 at 3) See Keenan v. Hall, 83 F.3d

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1083, 1088, 1090-91 (9th Cir. 1996) (Because “[t]here is no legitimate penological

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justification for . . . constant illumination[,]” a triable issue of fact existed on a continuous

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lighting claim where prisoner was subjected to two large fluorescent lights on 24 hours a day

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for six months, and prisoner claimed the lighting caused him grave sleeping and other mental

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and psychological problems.) (citations and internal quotation marks omitted), opinion

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amended on denial of rehearing by 135 F.3d 1318 (9th Cir. 1998). Plaintiff seeks declaratory

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and injunctive relief and monetary damages.

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On November 5, 2012, the Arizona Department of Corrections (“ADOC”) moved

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Plaintiff to its south unit in Florence, Arizona, which does not have the continuous lighting

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problem about which Plaintiff has complained. (Doc. 15, ¶ 10 at 3)

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II. Appointment of Expert Witness

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Federal Rule of Evidence 702(a) authorizes “[a] witness who is qualified as an expert

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by knowledge, skill, experience, training, or education [to] testify in the form of an opinion

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or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help
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the trier of fact to understand the evidence or to determine a fact in issue[.]” Rule 706

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provides that a district court may appoint expert witnesses, set compensation for the witness,

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and determine which portion of the expert’s bill each party will pay. Specifically, Rule

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706(a), Fed.R.Evid., reads, in part, “[o]n a party’s motion or on its own, the court may order

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the parties to show cause why expert witnesses should not be appointed[.]” See Walker v.

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American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999).

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Rule 706(a), however, “[o]nly allows a court to appoint a neutral expert.” Gorton v. Todd,

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793 F.Supp.2d 1171, 1178 (E.D. Cal. 2011) (citation and footnote omitted). “However,

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‘[r]easonably construed, Rule 706 does not contemplate the appointment of, and

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compensation for, an expert to aid one of the parties.’” Hollis v. Sloan, 2010 WL 4069336,

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at *1 (E.D. Cal. Oct. 18, 2010) (quoting Gamez v. Gonzalez, 2010 WL 2228427, *1 (E.D.

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Cal. June 3, 2010)). “[T]he principal purpose of a court- appointed expert is to assist the trier

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of fact, not to serve as an advocate.” Id. In determining whether to appoint a neutral expert

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witness, a district court considers the “[c]omplexity of the evidence, and the court’s need for

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an impartial viewpoint.” Beaver v. Board of County Commissioners, 1991 WL 350749, at

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*1 (D. Idaho 1991) (citations omitted); see also McKinney v. Anderson, 924 F.2d 1500, 1511

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(9th Cir. 1991) (suggesting that district court consider appointing an expert in a § 1983 action

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involving second-hand tobacco smoke), affirmed on other grounds Helling v. McKinney, 509

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U.S. 25 (1993).

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The Ninth Circuit has found that, while no funds have been provided by law to

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compensate an expert witness in civil rights cases, Rule 706(c)(2), “in an appropriate case,

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permits the court to apportion all the cost to one side.” McKinney, 924 F.2d at 1511.

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“Otherwise, we are faced with an inflexible rule that would prevent the district court from

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appointing an expert witness whenever one of the parties in an action is indigent, even when

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the expert would significantly help the court.” Id. The Fifth Circuit has noted, however, that

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the Supreme Court has held that “expenditure of public funds [on behalf of an indigent

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litigant] is proper only when authorized by Congress.” Pedraza v. Jones, 71 F.3d 194, 196

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(5th Cir. 1995) (quoting United States v. MacCollom, 426 U.S. 317, 321 (1976)). “The plain
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language of section 1915 does not provide for the appointment of expert witnesses to aid an

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indigent litigant.” Id. Plaintiff has not pointed to, and the Court’s independent research has

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not discovered, any federal statute authorizing the expenditure of public funds for the

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appointment of an expert witness to assist a pro se party in litigation.

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District “[c]ourts do not commonly appoint an expert pursuant to Rule 706 and

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usually do so only in ‘exceptional cases in which the ordinary adversary process does not

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suffice’ or when a case presents compelling circumstances warranting appointment of an

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expert.” Hart v. Agnos, 2008 WL 2008966, at *5 (D. Ariz. April 25, 2008) (citations

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omitted).

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III. Discussion

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Plaintiff has made no showing that the evidence or his claims are so complex that the

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appointment of a court expert is necessary to “help the trier of fact to understand the evidence

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or to determine a fact in issue[,]” Rule 702(a), Fed.R.Evid., or that this case presents

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compelling circumstances warranting the appointment of an expert. See Lopez v. Scribner,

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2008 WL 551177, at *1 (E.D. Cal. Feb. 27, 2008) (denying plaintiff’s request to appoint

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medical expert witness in § 1983 action because “the legal issues involved in this action are

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not particularly complex.”) (citing Ledford v. Sullivan, 105 F.3d 354, 358-59 (7th Cir. 1997)

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(district court did not abuse its discretion by denying request to appoint expert under Rule

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706 where trier of fact’s determination of deliberate indifference was not so complicated that

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an expert was required); Hooker v. Adams, 2007 WL 4239570, at *1 (E.D. Cal. Dec. 3, 2007)

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(plaintiff’s motion for the appointment of an expert witness denied as “the legal issues

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involved in this action are not particularly complex.”). The adverse effects of sleep

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deprivation on the human body are within the common knowledge of potential jurors. An

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expert witness will not be necessary to relate the cause and effect that constant, bright

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illumination may have on normal sleep and rest, causing headaches, inability to sleep,

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upsetting one’s internal sleep clock, and rendering someone too fatigued to participate in

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basic daily activities. Accordingly, the Court cannot conclude a medical expert’s opinion is

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essential to the presentation and fair resolution of the legal issues in this case.
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Additionally, because there is a summary judgment motion pending on Plaintiff’s

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Eighth Amendment liability claim, doc. 34, it is premature to decide whether appointment

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of a medical or sleep expert is warranted on issues related to causation or damages. See

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Estrada v. Rowe, 2011 WL 249453, at *5 (N.D. Cal. Jan. 25, 2011). As the district court in

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Estrada noted, “[u]ntil the Court has had the opportunity to review the arguments and

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evidence submitted by the parties on summary judgment, no determination can be made that

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the issues are so complex as to require the testimony of an expert to assist the trier of fact.”

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Id.

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Plaintiff’s reliance on Steele v. Shah, 87 F.3d 1266, 1270-71 (11th Cir. 1996) and

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Beard v. Banks, 548 U.S. 521, 534 (2006) is unavailing. In Steele, the Eleventh Circuit

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reversed the district court’s denial of plaintiff’s motion for appointment of an expert witness

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where no explanation was given for the denial and, absent an explanation, the circuit court

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was “unable to review the [ ] denial [ ] for abuse of discretion.” Steele, 87 F.3d at 1270. In

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Beard, the Supreme Court held that a ban on all newspapers, magazines, and personal

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photographs for inmates housed in long term segregation unit does not violate the First

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Amendment because it is rationally related to rehabilitation. There is no discussion of Rule

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706(a), Fed.R.Evid., in Beard.

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Accordingly,

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IT IS ORDERED Plaintiff’s Motion to Appoint Expert to Analyze Health Effects and

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Harm of Constant Illumination, doc. 40, is DENIED.
Dated this 3rd day of June, 2013.

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