(PC) Johnson v. Dovey et al

Filing 136

ORDER DENYING 107 Motion regarding expert witnesses and 129 Motion signed by Magistrate Judge Dennis L. Beck on 8/4/2011. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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GARRISON S. JOHNSON,

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CASE NO. 1:08-CV-00640-LJO-DLB PC

Plaintiff,

ORDER DENYING PLAINTIFF’S MOTIONS
REGARDING EXPERT WITNESSES

v.
(DOCS. 107, 129)

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JOHN DOVEY, et al.,
Defendants.
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Plaintiff Garrison S. Johnson (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in

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

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against Defendants Dunnahoe, V. Ybarra, Cunningham, Medrano, Holguin, Valasquez, G.

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Ybarra, Curliss, J. Gonzales, and K. Powell on claims of excessive force, inhumane conditions of

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confinement, retaliation, and state law claims. Pending before the Court is 1) Plaintiff’s motion

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for the Court to facilitate the location of expert witnesses, filed December 17, 2010, and 2)

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Plaintiff’s motion for appointment of expert witness, filed May 4, 2011.

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An expert witness may testify to help the trier of fact determine the evidence or a fact at

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issue. Fed. R. Evid. 702. Federal courts have discretion to appoint expert witnesses, and parties

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may provide names of which witnesses to appoint. Fed. R. Evid. 706(a),(d); Walker v. American

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Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999). A court may

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appoint an expert witness when “scientific, technical, or other specialized knowledge will assist

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the trier of fact to understand the evidence or determine a fact in issue.” Fed. R. Evid. 702.
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Plaintiff’s December17, 2010 motion seeks from the Court a list of potential expert

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witnesses to provide for Plaintiff. Plaintiff’s May 4, 2011 motion seeks the appointment of

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specific experts for various issues, including, inter alia: 1) examining rules violation reports,

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crime incident reports, staff complaints, and other files relating to allegations of excessive force,

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retaliation, from the period of 2000 to 2010; 2) to testify as to the use of pepper spray and

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whether certain amounts of pepper spray used would constitute excessive force; 3) to testify as to

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whether Plaintiff needed immediate medical care afterwards, and whether Defendant Holguin

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was injured; and 4) to testify as to Defendant V. Ybarra’s signature on a crime incident report

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and whether she actually wrote the report.

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The Court set a discovery cut-off date of September 20, 2010. July 30, 2010 Order, Doc.

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81. Plaintiff’s motions clearly concern discovery, and thus are subject to the discovery cut-off

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date. Plaintiff thus seeks to modify the discovery cut-off date. Good cause is required to modify

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the discovery cut-off date. Fed. R. Civ. P. 16(b)(4). Plaintiff provides no good cause.

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Accordingly, Plaintiff’s motions should be denied.

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Additionally, the Court previously adjudicated a similar motion by Plaintiff. On July 26,

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2010, Plaintiff filed a motion for an appointment of an expert witness. Doc. 79. Plaintiff sought

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an expert to testify that the rules violation and crime incident reports were falsified. The

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undersigned denied Plaintiff’s motion. February 11, 2011 Order, Doc. 112. Plaintiff moved for

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reconsideration on February 28, 2011. Pl.’s Mot., Doc. 117. The District Judge assigned to this

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action denied Plaintiff’s motion. March 22, 2011 Order, Doc. 122. Plaintiff’s motion is in effect

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seeking a second reconsideration.

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Based on the foregoing, it is HEREBY ORDERED that Plaintiff’s motions regarding
expert witnesses, filed December 17, 2010 and May 4, 2011, are DENIED.
IT IS SO ORDERED.
Dated:

August 4, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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