Barnett v. Norman, et al.
Filing
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ORDER Addressing Memorandum Of Points And Authorities In Support Of Plaintiff's Opposition (ECF No. 201 ), signed by Magistrate Judge Barbara A. McAuliffe on 11/20/2012. (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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CASE NO. 1:05-cv–01022-BAM PC
Plaintiff,
ORDER ADDRESSING MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT OF
PLAINTIFF’S OPPOSITION
v.
MARTIN GAMOBA, ANGEL DURAN,
and MANUEL TORRES,
(ECF No. 201)
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Defendants.
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/
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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 and is currently set for trial on January 22, 2012. Plaintiff filed a motion for the
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appointment of an expert witness on October 18, 2012, and Defendants filed an opposition on
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November 1, 2012. (ECF Nos. 178, 187.) On November 14, 2012, an order issued addressing
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several of Plaintiff’s motions and denying his motion for an expert witness. (ECF No. 199.) On
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November 19, 2012, Plaintiff filed a reply to the opposition to the motion to appoint an expert
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witness.1 (ECF No. 201.)
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Plaintiff alleges that he was struck in the skull during the incident and experienced a period
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of unconsciousness. (Memorandum of Points and Authorities 2, ECF No. 201.) Plaintiff states that
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The proof of service is dated November 8, 2012, making the reply timely under the Prison Mailbox Rule.
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he underwent hospitalization and surgery and wants to show that he was not seen as recorded in the
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prison medical records and that his injuries were not de minimus. (Id. at 3.) Plaintiff objects to
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Defendants opposition to the extent that it states he seeks the expert to increase any award of
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damages. (Id. at 3.) Plaintiff states that in prison litigation cases experts commonly testify
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concerning prison medical and mental health care, the psychological effects of mistreatment,
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conditions of confinement, and the use of force. (Id. at 4.) Plaintiff cites Crabtree v. Collins, 900
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F.2d 79 (6th Cir. 1990), to support his motion for the appointment of an expert neurologist.
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Plaintiff’s reliance on Crabtree in support of his motion is misplaced. In Crabtree, the inmate
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was claiming deliberate indifference to medical care due to the prison’s failure to provide surgery
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to insert a protective plate in his skull following surgery to remove a bullet from his brain. Crabtree,
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900 F.2d at 80-81. The inmate was appointed counsel and after the case was dismissed without a
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decision on the merits, the district court awarded the inmate attorney’s fees. The issue before the
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court was whether the inmate was a prevailing party due to the appointment of the medical expert.
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(Id. at 82.) Crabtree only addresses the issue of whether appointment of the expert witness makes
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the inmate a prevailing party within the meaning of 42 U.S.C. § 1988.
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While 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, whether an expert witness is needed depends upon “the context of the
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standard of law governing the claims and defenses at issue.” Stakey v. Stander, No. 1:09-cv-00094-
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BLW, 2011 WL 887563, at *3 n.1 (D.Idaho Mar. 10, 2011). “The principle purpose of a court-
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appointed expert is to assist the trier of fact from a position of neutrality, not to serve as an
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advocate.” Stakey, 2011 WL 887563, at *3.
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This action is proceeding against Defendants for the use of excessive force in violation of the
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Eighth Amendment. The question to be decided by the jury here is whether Defendants applied force
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to Plaintiff maliciously and sadistically for the purpose of causing harm or in a good faith effort to
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restore order. Wilkins v. Gaddy, 130 S. Ct. 1175, 1178 (2010) (per curiam). Resolution of this issue
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does not involve the jury considering complex questions regarding medical diagnosis and judgment.
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Further, while Plaintiff argues that the expert is needed to testify that his injuries were more
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than de minimus, Plaintiff will be able to testify to the injuries, the treatment he received following
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the incident, and the effects of the injuries. To the extent that Plaintiff seeks the testimony of an
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expert to testify to a lack of medical care following the incident, this action is only proceeding on
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the excessive force claim and Plaintiff’s medical care is not at issue here.
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IT IS SO ORDERED.
Dated:
10c20k
November 20, 2012
/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
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