Evans v. Tilton et al

Filing 95

ORDER DENYING 56 & 78 Motions for Appointment of Expert Witness; DENYING 57 Motion for Subpoena Duces Tecum of Desposition Transcript; GRANTING 65 Motion for Extension of Time to File an Opposition to Defendant's Motion for Summary Judgment (Plaintiffs Opposition 82 is considered timely.), signed by Magistrate Judge Dennis L. Beck on 9/1/2010. (Marrujo, C)

(PC) Evans v. Tilton et al

Doc. 95

1 2 3 4 5 6 7 8 JOHNNY EARL EVANS, 9 Plaintiff, 10 v. 11 TILTON, et al., 12 Defendants. 13 14 / 15 16 Plaintiff Johnny Earl Evans ("Plaintiff") is a prisoner in the custody of the California ORDER GRANTING MOTION FOR EXTENSION OF TIME TO FILE AN OPPOSITION (DOC. 65) ORDER DENYING MOTION FOR SUBPOENA DUCES TECUM OF DEPOSITION TRANSCRIPT (DOC. 57) ORDER DENYING MOTIONS FOR APPOINTMENT OF EXPERT WITNESS (DOCS. 56, 78) CASE NO. 1:07-CV-01814-DLB PC

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

17 Department of Corrections and Rehabilitation ("CDCR"), proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on 19 Plaintiff's complaint against Defendants S. Zamora and Youssef for violation of the Eighth 20 Amendment. Pending before the Court are: 1) Plaintiff's motion for appointment of expert 21 witness, filed December 23, 2009, and re-filed April 23, 2010; 2) Plaintiff's motion for subpoena 22 of the deposition transcript, filed January 6, 2010; and 3) Plaintiff's motion for extension of time 23 to file an opposition to Defendants' motion for summary judgment, filed February 5, 2010. 24 I. 25 Motion For Appointment Of Expert Witness Pending before the Court is Plaintiff's motion for appointment of an expert witness, filed

26 December 23, 2009, and re-submitted on April 23, 2010. (Pl.'s Mots., Docs. 56, 78.) 27 Defendants filed an opposition on January 11, 2010. (Defs.' Opp'n, Doc. 59.) 28 Plaintiff requests an expert to show when x-rays and MRIs are medically indicated for 1
Dockets.Justia.com

1 treatment of a torn Achilles tendon, when surgery is necessary to repair a partially torn Achilles 2 tendon, and whether a torn Achilles tendon will heal on its own. Defendants contend that these 3 questions are more germane for a malpractice action which examines reasonable standards of 4 medical care, as opposed to an Eighth Amendment action, which examines the seriousness of the 5 medical need and the defendants response to that need. 6 Federal Rule of Evidence 706 permits a court, in an exercise of its discretion, to appoint

7 an independent expert. See McKinney v. Anderson, 924 F.2d 1500, 1511 (9th Cir. 1991) 8 (recommending appointment of expert for medically complex cases). The appointment of an 9 independent expert should be considered if scientific, technical, or other specialized knowledge 10 will assist the trier of fact. Fed. R. Evid. 702. 11 Here, Plaintiff's case involves a straight-forward medical issue, the treatment Plaintiff

12 received for a torn Achilles tendon. The Court is aware that Plaintiff has no medical expertise. 13 However, the dispute in this action is whether Defendants provided Plaintiff with constitutionally 14 deficient medical care. Defendants' argument on summary judgment is that neither Defendant 15 consciously disregarded Plaintiff's medical needs by their actions. Such an issue can be resolved 16 without the need for appointment of a medical expert. Plaintiff's request for appointment of an 17 expert is DENIED. 18 II. 19 Subpoena Of Deposition Transcript Plaintiff filed a motion for subpoena of the deposition transcript on January 6, 2010.

20 (Doc. 57.) Plaintiff requests a subpoena for a transcript of the November 19, 2009 deposition 21 conducted by defense counsel at Corcoran State Prison. Plaintiff appears to desire this deposition 22 in order to contradict Defendant Youssef's responses to Plaintiff's discovery request. Defendant 23 Youssef had contended he lacked sufficient knowledge to make a response. 24 The Court has already adjudicated Plaintiff's motion to compel, rendering the purpose of

25 Plaintiff's motion for subpoena moot. It is also unclear why Plaintiff's responses in a deposition 26 would implicate Defendant Youssef's knowledge in responding to a discovery request. Plaintiff 27 is also not entitled to demand a copy of the deposition, as there is no such provision in the 28 Federal Rules of Civil Procedure. It is a party's responsibility to acquire a deposition transcript 2

1 from the court reporter who recorded it by contacting the court reporter and paying reasonable 2 charges for it. See Fed. R. Civ. P. 30(f)(3). The Court will not issue a subpoena for the court 3 reporter to produce a copy of the deposition. Accordingly, Plaintiff's motion for a subpoena of 4 the deposition is DENIED. 5 III. 6 Motion For Extension Of Time To File Opposition On February 5, 2010, Plaintiff filed a motion for extension of time to file an opposition to

7 Defendants' motion for summary judgment. (Doc. 65.) Plaintiff filed his opposition on June 15, 8 2010. (Doc. 82.) 9 As the Court had yet to adjudicate Plaintiff's other pending motions, Plaintiff's motion

10 for extension of time to file an opposition is GRANTED. Plaintiff's opposition, filed June 15, 11 2010 is considered timely. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 IT IS SO ORDERED. Dated: 3b142a

September 1, 2010

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE