Sherman v. Gonzalez et al
Filing
80
ORDER DENYING Plaintiff's 72 Request For Court to Appoint Expert Witness, signed by Magistrate Judge Gerald B. Cohn on 10/3/2011. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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BRANDON L. SHERMAN,
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CASE NO. 1:09-cv-00420-LJO-GBC (PC)
Plaintiff,
ORDER DENYING PLAINTIFF’S REQUEST
FOR COURT TO APPOINT EXPERT WITNESS
v.
(Doc. 72)
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F. GONZALES, et al.,
Defendants.
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Plaintiff, Brandon L. Sherman, (“Plaintiff”) is a state prisoner proceeding pro se in this civil
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rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants Martinez,
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Pinkerton, Rivera, Rocha and Walker. (Docs. 13, 16, 18). On July 21, 2011, the Defendants filed
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a cross-motion for summary judgment and opposition to Plaintiff’s motion for summary . (Doc. 66).
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On August 19, 2011 Plaintiff filed an opposition. (Docs. 71, 72, 73, 74). In Plaintiff’s opposition
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Plaintiff also requested for the Court to appoint an expert witness to aid in his ability to oppose
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Defendants’ motion for summary judgment. (Doc. 73 at 2). On August 26, 2011, Defendants filed
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a reply arguing against appointing counsel. (Doc. 79).
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The district court has the discretion to appoint an expert pursuant to Rule 706(a) of the
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Federal Rules of Evidence, which reads, in part, "The court may on its own motion or on the motion
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of any party enter an order to show cause why expert witnesses should not be appointed..." Fed. R.
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Evid. 706(a); Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th
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Cir. 1999). The instant action involves allegations of deliberate indifference to plaintiff's serious
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medical needs, in violation of the Eighth Amendment. The court finds that the issues in these
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motions for summary judgment are not so complex as to require the testimony of an expert witness.
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Additionally, plaintiff is proceeding in forma pauperis and is, by his own admission, unable
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to compensate an expert witness. Pursuant to Rule 706, the court has discretion to apportion costs
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in the manner directed by the court, including the apportionment of costs to one side. Fed. R. Ev.
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706(b). In instances such as this, where the government would likely bear the cost, the court should
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exercise caution. The court has a burgeoning docket of civil rights cases filed by prisoners
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proceeding pro se and in forma pauperis. The facts of this case are no more extraordinary and the
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legal issues involved no more complex than those found in the majority of the cases now pending
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before this court. Finally, the Court finds that Plaintiff’s request for an expert witness is untimely
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as discovery has already closed and Plaintiff’s opposition is currently before the court.
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Based of the foregoing the Court HEREBY ORDERS that Plaintiff’s request for appointment
of counsel is DENIED.
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IT IS SO ORDERED.
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Dated:
0jh02o
October 3, 2011
UNITED STATES MAGISTRATE JUDGE
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