Brisken v. Griego et al

Filing 161

ORDER denying Plaintiff's 147 "Under Rule 706 of the Federal Rules of Civil Procedure Plaintif [sic] Files Motion for Court Appointed Witness", 151 "Memorandum of Law Motion for Court Appointed Exspert [sic] Witness", and 158 "Requests Plaintiff to Resubmit Motion for Court Appointed Exspert [sic] Witness under Civil Procedure 702-705". See document for complete details. Signed by Magistrate Judge Eileen S Willett on 1/31/19. (MSA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jhon Nigel Brisken,
Plaintiff,

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ORDER

v.

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No. CV-16-02434-PHX-JJT (ESW)

Unknown Griego, et al.,

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Defendants.

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On March 24, 2017, Plaintiff Jhon Nigel Brisken, who is confined in the Corrections

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Corporation of America’s Saguaro Correctional Center in Eloy, Arizona, filed a pro se civil

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rights Third Amended Complaint pursuant to 42 U.S.C. § 1983, alleging violations of his

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Eighth Amendment right to adequate medical care and right to be free from cruel and usual

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punishment as well as a violation of his Fourteenth Amendment due process rights. (Doc.

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18). Counts One and Two set forth deliberate indifference claims and Count Three sets

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forth a due process claim. The Court ordered Defendants Beare and Gilwrath to answer

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Count One and Defendants Thomas and Griego to answer Counts Two and Three (Doc.

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19). Defendants Gilreath, Thomas, and Griego filed an Answer (Doc. 30). Defendant

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Beare has not been served. Fully briefed Motions for Summary Judgment are pending

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before the Court for all appearing Defendants (Docs. 91, 93).

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Recommendation regarding dismissal of Defendant Beare is pending before the Court

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A Report and

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(Doc. 86). A request for injunctive relief has been fully briefed and is also pending before

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the Court. (Doc. 107).

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Pending before the Magistrate Judge are three motions in which Plaintiff seeks the

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appointment of an expert witness: “Under Rule 706 of the Federal Rules of Civil Procedure

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Plaintif [sic] Files Motion for Court Appointed Witness” (Doc. 147), “Memorandum of

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Law Motion for Court Appointed Exspert [sic] Witness” (Doc. 151), and “Requests

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Plaintiff to Resubmit Motion for Court Appointed Exspert [sic] Witness under Civil

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Procedure 702-705” (Doc. 158). Because this case does not require the appointment of a

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medical expert to assist the trier of fact or Court, the motions will be denied.

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DISCUSSION

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In each of his motions Plaintiff requests that the Court appoint “an ortheopedic [sic]

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specialist private or from the hospital who doesn’t work for Core Civic” and is neutral to

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examine the Plaintiff to opine whether Defendants were deliberately indifferent to

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Plaintiff’s medical needs (Doc. 147 at 1; Doc. 151 at 3; Doc. 158 at 4).

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Rule 702 of the Federal Rules of Evidence provides that “[i]f scientific, technical,

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or other specialized knowledge will assist the trier of fact to understand the evidence or to

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determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,

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training, or education, may testify thereto in the form of an opinion or otherwise.” The

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Court has the discretion to appoint an expert and to apportion costs, including the

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apportionment of costs to one side. Fed. R. Evid. 706; Ford ex rel. Ford v. Long Beach

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Unified School Dist., 291 F.3d 1086, 1090 (9th Cir. 2002). Expert witnesses, however,

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cannot be appointed solely to aid a litigant in presenting his or her case. Expert witnesses

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can be only appointed where necessary to aid the court. See Pedraza v. Jones, 71 F.3d 194,

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196 (5th Cir. 1995) (stating that “the plain language of [28 U.S.C. § 1915] does not provide

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for the appointment of expert witnesses to aid an indigent litigant”). “The most important

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factor in favor of appointing an expert is that the case involves a complex or esoteric subject

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beyond the trier-of-fact’s ability to adequately understand without expert assistance.”

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WRIGHT & MILLER, 29 FED. PRAC. & PROC. EVID. § 6304 (2004).

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The Court finds that Plaintiff’s allegations in his Third Amended Complaint (Doc.

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18) are not so complicated as to require the appointment of an expert witness to assist the

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Court. A trier-of-fact does not require a medical expert to determine whether Defendants

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was deliberately indifferent to Plaintiff’s medical needs. See Ledford v. Sullivan, 105 F.3d

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354, 359 (7th Cir. 1997) (recognizing that deliberate indifference claims are based upon a

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subjective state of mind, and thus do normally not require the kind of objective, expert

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testimony required in a malpractice action). Plaintiff’s Motions (Docs. 147, 151, 158) will

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be denied.

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CONCLUSION

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For the reasons set forth herein,

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IT IS ORDERED denying Plaintiff’s “Under Rule 706 of the Federal Rules of Civil

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Procedure Plaintif [sic] Files Motion for Court Appointed Witness” (Doc. 147),

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“Memorandum of Law Motion for Court Appointed Exspert [sic] Witness” (Doc. 151),

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and “Requests Plaintiff to Resubmit Motion for Court Appointed Exspert [sic] Witness

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under Civil Procedure 702-705” (Doc. 158).

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Dated this 31st day of January, 2019.

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Honorable Eileen S. Willett
United States Magistrate Judge

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