Gamez v. Gonzalez, et al.

Filing 32

ORDER DENYING 26 Motion for Appointment of Expert Witness signed by Magistrate Judge Peter Lewis on 6/2/2010. (Bradley, A)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 INTRODUCTION Plaintiff Sergio Alejandro Gámez, a state prisoner proceeding pro se and in forma UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA Case No. 08cv1113 MJL (PCL) ORDER DENYING MOTION Plaintiff, FOR APPOINTMENT OF EXPERT WITNESS

SERGIO ALEJANDRO GÁMEZ,

v. F. GONZALEZ, et al.,

Defendants.

(Doc. No. 26.)

17 pauperis, filed a civil rights complaint under 42 U.S.C. § 1983 on April 1, 2009. (Doc. No. 13.) 18 On April 29, 2010, Plaintiff filed a Motion for Appointment of an Expert Witness.1/ (Doc. No. 19 26.) For the reasons set forth below, Plaintiff's Motion for Appointment of Expert Witness is 20 DENIED. 21 22 DISCUSSION An expert witness may testify to help the trier of fact determine the evidence or a fact at

23 issue. FED.R.EVID. 702. Federal courts have discretion to appoint expert witnesses, and parties 24 may name witnesses to appoint. FED.R.EVID. 706(a),(d); Walker v. American Home Shield 25 Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir.1999). Although there is no definite 26 rule to guide discretion, "[a]ppointment [of expert witnesses] may be appropriate when 27 `scientific, technical, or other specialized knowledge will assist the trier of fact to understand the 28 Although Plaintiff's motion makes a "request for attorney fees (expert witness)," the body of the motion suggests the fees will be used to pay for "anticipated expert testimony," not for legal services. Because Plaintiff is asking the Court to pay for expert testimony, the Court will review the motion as a Motion for Appointment of an Expert Witness.
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1 evidence or decide a fact in issue....'" Levi v. Director of Corrections, 2006 WL 845733 (E.D. 2 Cal. March 31, 2006) (citing Ledford v. Sullivan, 105 F.3d 354, 358-59 (7th Cir.1997). 3 Although Plaintiff is proceeding in forma pauperis, the court is not required to pay for

4 such an appointed expert. The in forma pauperis (IFP) statute, 28 U.S.C. § 1915, does not waive 5 the requirement of the payment of fees or expenses for witnesses in a § 1983 prisoner civil rights 6 action. Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir.1993). Moreover, "[r]easonably construed, 7 [Rule 706] does not contemplate the appointment of, and compensation for, an expert to aid one 8 of the parties." Walker v. Woodford, 2008 WL 793413 (S.D. Cal., March 24, 2008) (citation 9 omitted). 10 Based upon the foregoing, Plaintiff's Motion for Appointment of an Expert Witness is

11 DENIED. 12 IT IS SO ORDERED.

13 DATE: June 2, 2010 14 15 16 17 cc: 18 19 20 21 22 23 24 25 26 27 28
08cv1113 MJL (PCL)

Peter C. Lewis U.S. Magistrate Judge United States District Court
The Honorable M. James Lorenz All Parties and Counsel of Record

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