Barnett v. Norman, et al.

Filing 198

ORDER Striking Unsigned Motions (ECF Nos. 188 , 191 , 193 , 195 ), ORDER Denying Plaintiff's Motion For Appointment Of An Expert Witness; Motion To File An Amended Complaint; And Motion For A Pretrial Conference (ECF Nos. 178 , 192 , 194 ), ORDER Directing Clerk's Office To Terminate Defendants' Motion To Modify The Pretrial Order (ECF No. 184 ), signed by Magistrate Judge Barbara A. McAuliffe on 11/14/2012. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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TROAS V. BARNETT,

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Plaintiff,

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CASE NO. 1:05-cv–01022-BAM PC
ORDER STRIKING UNSIGNED MOTIONS

v.

(ECF Nos. 188, 191, 193, 195)

MARTIN GAMOBA, ANGEL DURAN,
and MANUEL TORRES,

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ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF AN EXPERT
WITNESS; MOTION TO FILE AN AMENDED
COMPLAINT; AND MOTION FOR A
PRETRIAL CONFERENCE

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(ECF Nos. 178, 192, 194)

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ORDER DIRECTING CLERK’S OFFICE TO
TERMINATE DEFENDANTS’ MOTION TO
MODIFY THE PRETRIAL ORDER

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Defendants.

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(ECF No. 184)
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I.

Procedural History

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Plaintiff Troas V. Barnett is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants

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Martin Gamboa, Angel Duran and Manuel Torres for the use of excessive force in violation of the

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Eighth Amendment. A motion in limine hearing is set for January 15, 2012, and jury trial is set for

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January 22, 2012.

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On October 12, 2012, a pretrial order issued in this action and on October 24, 2012,

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Defendants filed a motion to modify the pretrial order. (ECF Nos. 175, 184.) After this action was

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reassigned to the undersigned an amended pretrial order issued on October 29, 2012. (ECF No. 185.)
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On November 1, 2012, Plaintiff filed an unsigned motion in limine. (ECF No. 188.) On November

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8, 2012, Plaintiff filed numerous documents, including an unsigned motion to address Plaintiff’s

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original trial exhibits, motion to amend the complaint, an unsigned motion to disallow Defendants’

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expert witness, an unsigned document entitled “Plaintiff Proposes the Following Settlement of

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Findings of Fact and Conclusions of Law, a motion to set a pretrial conference, and

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a request for judicial notice.1 (ECF Nos. 191, 192, 193, 194, 195, 196.)

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Initially, since the issues in Defendants’ motion to modify the pretrial order were addressed

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in the amended pretrial order, the Clerk’s Office is directed to terminate Defendants’ motion to

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modify the pretrial order.

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II.

Unsigned Pleadings

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Unsigned documents cannot be considered by the Court, and Plaintiff’s unsigned motion in

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limine, motion to address Plaintiff’s original trial exhibits, motion to disallow Defendants’ expert

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witness, and the document entitled “Plaintiff Proposes the Following Settlement of Findings of Fact

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and Conclusions of Law are stricken from the record on that ground. Fed. R. Civ. P. 11(a); Local

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Rule 131(b).

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III.

Motion for Pretrial Conference

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Plaintiff requests that the Court set a pretrial conference to address his exhibits A, B, C, and

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D. A motion in limine hearing is currently set for January 15, 2012, and Plaintiff’s multiple motions

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shall be addressed at that hearing. Accordingly, the Court finds there is no need set an additional

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pretrial conference and Plaintiff’s motion is denied.2 To the extent that Plaintiff seeks to have

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Defendants stipulate to his trial exhibits, Plaintiff may communicate such a request to Defendants

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without the involvement of the Court.

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IV.

Motion to Amend Complaint

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Plaintiff moves for leave to file an amended complaint to add allegations of violations of 18

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U.S.C. § 242, Deprivation of Civil Rights; 18 U.S.C. §§ 371, 1503 Conspiracy to Obstruct Justice;

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Plaintiff’s pleadings not addressed by this order shall be addressed at the motion in limine hearing.

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Plaintiff requests that the Court issue writs to have his witnesses transported for trial. Such writs shall be
issued closer to the date of trial.

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and 18 U.S.C. § 1623, False Declarations against the defendants. A discovery and scheduling order

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issued on July 20, 2010, setting the date to file an amended complaint as January 20, 2011. (ECF

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No. 59.) On October 25, 2011, an amended discovery and scheduling order issued and the amended

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pleading date remained unchanged. (ECF No. 77.) On June 24, 2011, Plaintiff’s motion to amend

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the complaint was denied. (ECF No. 108.) At the pretrial conference on October 11, 2012,

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Plaintiff’s second motion to amend the complaint was heard and pages 3, 4, 7, and 8 of the amended

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complaint were admitted into evidence, and the remainder of the amended complaint was excluded.

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(ECF No. 174.)

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The pretrial order has issued and this action has been set for trial, so Plaintiff’s motion must

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meet the standard under Federal Rule of Civil Procedure 16 for modification of a scheduling order.

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Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 16(b), and good

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cause requires a showing of due diligence, Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,

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609 (9th Cir. 1992). If the party seeking to amend the scheduling order fails to show due diligence

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the inquiry should end and the court should not grant the motion to modify. Zivkovic v. Southern

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California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002).

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Discovery closed in this action on March 20, 2011, and on October 25, 2011, an order issued

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allowing additional limited discovery which was to be completed by March 15, 2012. (ECF Nos.

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77, 124.) Pursuant to the scheduling orders issued in this action, Plaintiff’s deadline to file an

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amended complaint was January 22, 2011. Plaintiff has filed two prior motions to amend the

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complaint and failed to raise the claims which he is attempting to allege in the amended complaint.

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Plaintiff’s current motion is brought ten months after the deadline to amend the pleadings and just

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over two months prior to the date set for trial in this action. Plaintiff has not exhibited due diligence

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in attempting to amend his complaint and the motion to amend is denied.

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V.

Motion for Appointment of Expert Witness

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Plaintiff brings a motion to have a court appointed neurologist to testify to the damages

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associated with blunt force trauma. The expenditure of public funds on behalf of an indigent litigant

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is proper only when authorized by Congress. See Tedder v. Odel, 890 F.2d 210 (9th Cir. 1989)

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(citations omitted). Plaintiff is proceeding in forma pauperis in this action and the in forma pauperis
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statute does not authorize the court to waive witness fees or expenses paid to those witnesses. Dixon

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v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993); see 28 U.S.C. § 1915. In instances such as this, where

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the government would likely bear the cost, the court should exercise caution.

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The district court has the discretion to appoint an expert pursuant to Rule 706(a) of the

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Federal Rules of Evidence, which reads, in part, “[t]he court may on its own motion or on the motion

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of any party enter an order to show cause why expert witnesses should not be appointed....” Fed. R.

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Evid. 706(a); Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071

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(9th Cir. 1999). Rule 706 also confers on the court the discretion to apportion costs in the manner

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directed by the court, including the apportionment of costs to one side. Fed. R. Evid. 706; Ford ex

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rel. Ford v. Long Beach Unified School Dist., 291 F.3d 1086, 1090 (9th Cir. 2002); Walker, 180

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F.3d at 1071. The Rules provide for an expert where “scientific, technical, or other specialized

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knowledge will help the trier of fact to understand the evidence or determine a fact in issue.” Fed.

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R. Evid. 702.

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Rule 702 is not a means to avoid section 1915 and the prohibition against using public funds

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to pay for the expenses of witnesses. Manning v. Masters, No. 2:11-cv-00896-KJD-CWH, 2012 WL

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1431359, at *2 (D.Nev. April 25, 2012); see Stakey v. Stander, No. 1:09-cv-00094-BLW, 2011 WL

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887563, at *3 n.1 (D.Idaho Mar. 10, 2011) (“Ordinarily, the plaintiff must bear the costs of his

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litigation, including expert expenses, even in pro se cases” and seeking appointment of an expert

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witness is not a way of sidestepping the rule). Whether an expert witness is needed depends upon

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“the context of the standard of law governing the claims and defenses at issue.” Stakey, 2011 WL

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887563, at *3.

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This action is proceeding on the claim that Defendants used excessive force in violation of

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the Eighth Amendment. The question to be decided by the jury here is whether Defendants applied

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force to Plaintiff maliciously and sadistically for the purpose of causing harm or in a good faith effort

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to restore order. Wilkins v. Gaddy, 130 S. Ct. 1175, 1178 (2010) (per curiam). This does not

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involve the jury considering complex questions regarding medical diagnosis and judgment. To the

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extent that Plaintiff seeks expert testimony regarding the effects of blunt force trauma, Plaintiff can

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testify to the symptoms that he has experienced since the incident. Accordingly, the Court shall deny
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Plaintiff’s motion for the appointment of an expert witness.

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VI.

Conclusion and Order

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s unsigned motion in limine, filed November 1, 2012, is STRICKEN from
the record;

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Plaintiff’s motion to address Plaintiff’s original trial exhibits, motion to disallow

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Defendants’ expert witness, and the document entitled “Plaintiff Proposes the

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Following Settlement of Findings of Fact and Conclusions of Law, filed November

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8, 2012, are STRICKEN from the record;

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3.

Plaintiff’s motion for a pretrial conference is DENIED;

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4.

Plaintiff’s motion to amend the complaint is DENIED;

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Plaintiff’s motion for the appointment of an expert witness is DENIED; and

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The Clerk’s Office is directed to terminate Defendants’ motion to modify the pretrial

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order, filed October 24, 2102.
IT IS SO ORDERED.
Dated:
10c20k

November 14, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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