Miller v. Rufion, et al
ORDER Re: Procedure For Obtaining Trial Testimony Of Marshall Lewis, M.D.; ORDER Denying Motion For Reconsideration (Doc. 171 ), signed by Judge Barry T. Moskowitz on 10/13/2011. (Fahrney, E)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
GERALD LEE MILLER, JR.,
Case No. 08cv1233 BTM(WMC)
ORDER RE: PROCEDURE FOR
OBTAINING TRIAL TESTIMONY OF
MARSHALL LEWIS, M.D.; ORDER
DENYING MOTION FOR
O. RUFINO, et al.,
Plaintiff argues that the Court should appoint Dr. Lewis as an expert under Fed. R.
Civ. P. 706. For the reasons discussed in the Court’s order filed on May 9, 2011, the Court
does not find it necessary to appoint an independent expert in this case. The fact that a pro
se plaintiff lacks the funds to hire an expert witness is not a valid reason for a court to
appoint the expert under Rule 706. See Noble v.Adams, 2009 WL 3028242, at * 1 (E.D. Cal.
Sept. 16, 2009) (“Plaintiff has not requested an expert because one is needed to assist the
court. Rather Plaintiff is requesting an expert because he cannot afford to hire one. Such
circumstances fall outside of reasons for an expert under Rule 706.”)
Furthermore, an expert appointed under Rule 706 in a civil case such as this one
must be paid by the parties. It appears that Plaintiff lacks the funds to pay Dr. Lewis’s
compensation. It would be unfair to require Defendant to pay all of the compensation. See
Piper v. Rasheed, 2011 WL 3495984, at * 4 (N.D. Cal. Aug. 9, 2011) (“[I]n a civil rights action
such as this, Rule 706(b) contemplates that the expert would be paid by the parties. Here
Defendant would have to bear the entire cost because Plaintiff is unable to pay for the
expert. There is no showing that it is appropriate or fair to require Defendant to bear the sole
burden of paying an expert witness to present Plaintiff’s point of view.”)
If Plaintiff wishes to subpoena Dr. Lewis to testify at trial, Plaintiff must tender the
appropriate witness fees with the subpoena. The Ninth Circuit has held that although 28
U.S.C. § 1915 provides for service of process with respect to an indigent’s witnesses, it does
not waive the payment of fees or expenses for those witnesses. Tedder v. Odel, 890 F.2d
210, 211-12 (1989). Therefore, Plaintiff’s in forma pauperis status does not excuse him from
paying required witness fees.
Plaintiff has also filed a motion for reconsideration of Judge McCurine’s Order filed
on August 23, 2011, denying Plaintiff’s “motion to intervene.” Plaintiff argues that he still
needs treatment by an independent medical clinic because he is being denied medical
treatment of his physical ailments, which are allegedly caused by food poisoning. Plaintiff
claims that his blood samples have been switched in an attempt to cover up the situation.
The Court construes Plaintiff’s motion as objections to Judge McCurine’s Order and
OVERRULES the objections. As explained in Judge McCurine’s Order, the Court lacks
jurisdiction to intervene in the medical treatment of Plaintiff at Calipatria. Plaintiff’s claims
of inadequate medical treatment at Calipatria are separate and distinct from Plaintiff’s claim
against Defendant Rufino (an LVN at Kern Valley State Prison) and cannot be entertained
in this action.
IT IS SO ORDERED.
DATED: October 13, 2011
Honorable Barry Ted Moskowitz
United States District Judge
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