Moran v. Dovey et al

Filing 139

ORDER Regarding Plaintiff's Objections to Pretrial Order; Plaintiff's Request for Appointment of an Expert Witness is Denied; Plaintiff's Request for the Court to Recognize a Different "Perez" Defendant is Denied; Plaintiff's Request to Add H. Tyson as a Defendant is Denied signed by Magistrate Judge Gerald B. Cohn on 05/31/2012. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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NICOLAS MORAN,

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Plaintiff,

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CASE NO. 1:08-cv-00016-GBC (PC)
ORDER REGARDING PLAINTIFF’S
OBJECTIONS TO PRETRIAL ORDER

v.
PLAINTIFF’S REQUEST FOR
APPOINTMENT OF AN EXPERT WITNESS
IS DENIED (Doc. 129)

JOHN DOVEY, et al.,

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Defendants.
PLAINTIFF’S REQUEST FOR THE COURT
TO RECOGNIZE A DIFFERENT “PEREZ”
DEFENDANT IS DENIED (Doc. 129)

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PLAINTIFF’S REQUEST TO ADD H. TYSON
AS A DEFENDANT IS DENIED (Doc. 129)

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I.

Factual and Procedural Background

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Plaintiff Nicolas Moran ("Plaintiff") is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on

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Plaintiff's second amended complaint, filed on November 18, 2008. Doc. 20; Doc. 29; Doc. 30. On

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May 15, 2012, the Court issued a pretrial order. Doc. 123. On May 17, 2012, Defendants filed

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objections to the pretrial order. Doc. 124. On May 23, 2012, Plaintiff filed objections to the pretrial

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order. Doc. 129.

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II.

Objections
a.

Plaintiff’s Objection #1
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Objection to denial of appointed expert witness

Without further elaboration, Plaintiff states that he believes there are “extenuating
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circumstances to justify appointment of an impartial expert witness.” Doc. 129 at 1.

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2.

Court’s Ruling

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Plaintiff seeks the appointment of an expert witness to help him present his case. The Court

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

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to one side. Fed. R. Evid. 706; Ford ex rel. Ford v. Long Beach Unified School Dist., 291 F.3d

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1086, 1090 (9th Cir. 2002); Walker v. American Home Shield Long Term Disability Plan, 180 F.3d

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1065, 1071 (9th Cir. 1999).

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In this case, the Court requires no special assistance in deciding the issues. Ford ex rel. Ford,

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291 F.3d at 1090; Walker, 180 F.3d at 1071. Further, where, as here, the cost would likely be

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apportioned to the government, the Court should exercise caution. The Court has a burgeoning

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docket of civil rights cases filed by prisoners proceeding pro se and in forma pauperis. The facts of

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this case are no more extraordinary and the legal issues involved no more complex than those found

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in the majority of the cases now pending before the Court. Accordingly, Plaintiff's request for the

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appointment of an expert witness is denied.

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b.

Plaintiff’s Objection #2
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Objection to substituting “T. Perez” instead of “J. Perez”

Without further argument, Plaintiff simply states that he “did not [request] for Defendant
Perez’s name to be amended. Doc. 129 at 2.
2.

Court’s Ruling

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The Court interprets Plaintiff’s objection to refer to the fact that Plaintiff’s second amended

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complaint named “J. Perez” as a defendant and the Court found a cognizable claim against “J.

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Perez.” Doc. 20; Doc. 29; Doc. 30. However, after multiple attempts to identify and serve “J.

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Perez,” “T. Perez” answered the complaint on September 2, 2010. Doc. 85. Defendant T. Perez’s

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answer states: “Please note that the Answering Defendant, originally identified by Plaintiff as ‘J.

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Perez,’ was only recently identified by CDCR Officials after diligent efforts to identify this

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individual pursuant to the Court’s order.” Doc. 85 at 1 n.1. More than a year and a half has passed

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since Plaintiff was on notice of the name change in efforts to locate the correct defendant.

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Plaintiff had ample opportunity during discovery to object to “T. Perez” being identified as
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the correct “Perez” in this lawsuit, however, Plaintiff did not exercise due diligence in finding

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additional information during discovery that would support a amending the complaint and serving

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a different “Perez” pursuant to Rule 4(m) or Rule 15(c)(1)(C) of the Federal Rules of Civil

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Procedure.

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Based on the foregoing, to the extent that Plaintiff is requesting that a different defendant be

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added to the case, such request for relief is DENIED. Further, if Plaintiff wishes to dismiss “T.

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Perez” from the action, such dismissal will apply for both “T. Perez” and “J. Perez” and the

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dismissal will be with prejudice.

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c.

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Plaintiff’s Objection #3
1.

Request to add Captain H. Tyson as a named defendant

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Plaintiff requests to add Captain H. Tyson as a defendant because Plaintiff had accidentally

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omitted this defendant from his second amended complaint. Doc. 129 at 2. Plaintiff proceeds to

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submit allegations in an attempt to state a claim against H. Tyson. Doc. 129 at 2.

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2.

Court’s Ruling

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Plaintiff had ample opportunity to motion the Court to further amend his complaint to add

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an additional defendant. On February 5, 2009, the Court screened his second amended complaint

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and informed Plaintiff of what claims and defendants were listed. Plaintiff has had over three years

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to discover that he had mistakenly omitted a defendant from the second amended complaint.

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Plaintiff did not exercise due diligence in seeking permission from the Court to add H. Tyson to the

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complaint, nor did Plaintiff follow Rule 4(m) of the Federal Rules of Civil Procedure to ensure

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proper service on H. Tyson. Based on the foregoing, the Court DENIES Plaintiff’s request to add

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H. Tyson as a defendant to the case at this late stage of the proceedings.

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III.

Conclusion and Order

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

Plaintiff's request for the appointment of an expert witness is DENIED;

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2.

Plaintiff’s request for “J. Perez” to be identified as different from “T. Perez” is

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DENIED; and

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3.

Plaintiff’s request to add H. Tyson as a defendant to the case is DENIED.

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IT IS SO ORDERED.

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Dated:
0jh02o

May 31, 2012
UNITED STATES MAGISTRATE JUDGE

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