Robinson v. Adams, et al.

Filing 210

ORDER Denying 195 Plaintiff's Ex Parte Motion for Appointment of Expert Witness, signed by Magistrate Judge Barbara A. McAuliffe on 8/7/14. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GEORGE H. ROBINSON,

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Plaintiff,

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v.
D. G. ADAMS, et al.,

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Defendants.

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Case No.: 1:08-cv-01380-AWI-BAM (PC)
ORDER DENYING PLAINTIFF’S EX PARTE
MOTION FOR APPOINTMENT OF EXPERT
WITNESS
(ECF No. 195)

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I.

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Plaintiff George H. Robinson (“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 proceeds on Plaintiff’s

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complaint against Defendants David, Miranda, Melo, Garcia, Mendoza and Masiel for use of

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excessive force in violation of the Eighth Amendment; against Defendants Adams and Ruiz for failure

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to protect in violation of the Eighth Amendment; and against Defendants Martinez, David, Miranda

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and Garcia for assault and battery in violation of state law.

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Procedural Background

On November 4, 2013, Plaintiff filed the instant ex parte motion for appointment of an expert

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witness. (ECF No. 195.) Defendants did not respond and the motion is deemed submitted. Local

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Rule 230(l).

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II.

Discussion

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Plaintiff moves for the appointment of an expert witness at trial pursuant to Federal Rule of

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Evidence 706(a). Specifically, Plaintiff seeks the appointment of Eldon Vail or Steve Martin, experts

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utilized in the matter of Coleman v. Brown, CV 90-0502 and who are reportedly familiar with the

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California Department of Corrections and Rehabilitation’s (CDCR’s) use of force procedures.

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Plaintiff asserts that these experts will “decipher for the jurors” issues including use of force, excessive

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and unreasonable force, CDCR’s policy and procedures and whether the force used by the Defendants

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constitutes excessive force. Plaintiff believes that one or more of these experts is necessary because

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Defendants have withheld evidence of the relevant procedures and these experts “will refute the

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Defendants[’] testimony” and “add credibility to plaintiff’s claims that the force was unreasonable and

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excessive.” (ECF No. 195, p. 2.)

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The court has the discretion to appoint an expert pursuant to Rule 706(a). In relevant part,

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Rule 706 states that “[o]n a party’s motion or on its own, the court may order the parties to show cause

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why expert witnesses should not be appointed. . . .” Fed. R. Evid. 706(a); Walker v. American Home

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Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999). Pursuant to Rule 702, “a

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witness who is qualified as an expert by knowledge, skill, experience, training or education may testify

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in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized

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knowledge will help the trier of fact to understand the evidence or to determine a fact in issue. . . .”

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Fed. R. Evid. 702. While the court has the discretion to appoint an expert and to apportion costs,

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including apportionment of costs to one side, Fed. R. Evid. 706; Ford ex rel. Ford v. Long Beach

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Unified School Dist., 291 F.3d 1086, 1090 (9th Cir.2002); Walker, 180 F.3d at 1071, where the cost

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would likely be apportioned to the government, the court should exercise caution.

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Based on Plaintiff’s representations that expert testimony will refute Defendants’ testimony

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and add credibility to his claim, it appears that Plaintiff seeks the appointment of one or more expert

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witnesses to assist him at trial. However, Rules 706 and 702 are not a means to avoid the in forma

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pauperis statute and its prohibition against using public funds to pay for the expenses of witnesses.

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Manriquez v. Huchins, 2012 WL 5880431, *12 (E.D. Cal. 2012). Rule 706 also does not contemplate

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court appointment and compensation of an expert witness as an advocate for Plaintiff. Id. at *14
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(purpose of a court-appointed expert is to assist the trier of fact, not to serve as an advocate); Brooks v.

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Tate, 2013 WL 4049043, *1 (E.D. Cal. Aug. 7, 2013) (avoiding bias or otherwise assisting one party is

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not the purpose of Rule 706); Gorrell v. Sneath, 2013 WL 3357646, * 1 (E.D. Cal. Jul. 3, 2013)

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(purpose of court-appointed expert is to assist the trier of fact, not to serve as an advocate for a

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particular party).

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There is no indication that a neutral expert will be required to assist the trier of fact in this

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matter. Plaintiff’s allegations of excessive force are not so complicated as to require the appointment

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of an expert witness to assist the court and/or a jury. Faletogo v. Moya, 2013 WL 524037, *1 (S.D.

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Cal. Feb. 12, 2013) (finding issues involved in prisoner’s excessive force claim not so complex as to

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require the testimony of expert witnesses). In determining whether Defendants subjected Plaintiff to

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excessive force in violation of the Eighth Amendment’s prohibition on cruel and unusual punishments,

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the main inquiry will be whether the force was applied in a good-faith effort to maintain or restore

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discipline, or maliciously and sadistically for the purpose of causing harm. Hudson v. McMillian, 503

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U.S. 1, 6-7 (1992) (citing Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). The trier of fact does not

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require scientific, technical, or specialized knowledge regarding CDCR’s use of force policies and

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procedures to make such a determination. Faletogo, 2013 WL 524037 at *1.

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III.

Conclusion and Order

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For the reasons stated, Plaintiff’s ex parte motion for the appointment of an expert witness,

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filed on November 4, 2013, is HEREBY DENIED.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

August 7, 2014

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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