Sutherland v. Yates et al
Filing
120
ORDER DENYING PLAINTIFF'S REQUEST FOR THE APPOINTMENT OF EXPERT WITNESSES FOR TRIAL signed by District Judge Lawrence J. O'Neill on 11/4/2014. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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WILLIAM SUTHERLAND,
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Plaintiff,
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vs.
1:09-cv-02152-LJO-GSA-PC
ORDER DENYING PLAINTIFF’S
REQUEST FOR THE APPOINTMENT OF
EXPERT WITNESSES FOR TRIAL
CORRECTIONAL OFFICERS A.
FERNANDO AND M. JERICOFF,
Defendants.
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I.
BACKGROUND
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William Sutherland ("Plaintiff") is a state prisoner proceeding pro se and in forma
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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This action now proceeds
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on the First Amended Complaint filed by Plaintiff on December 6, 2010, against defendants
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Correctional Officers A. Fernando and M. Jericoff (“Defendants”) for use of excessive force in
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violation of the Eighth Amendment, and related state claims. (Doc. 15.) This case is scheduled
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for a telephonic trial confirmation hearing on November 19, 2014, and jury trial on January 6,
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2015.
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On September 30, 2014, Plaintiff filed a pretrial statement, in which he requests the
appointment of impartial expert witnesses for trial. (Doc. 111 at 34.)
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II.
APPOINTMENT OF EXPERT WITNESS
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Legal Standards
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The court has the discretion to appoint an expert pursuant to Rule 706(a) of the Federal
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Rules of Evidence. In relevant part, Rule 706 states that “[o]n a party’s motion or on its own,
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the court may order the parties to show cause why expert witnesses should not be appointed . .
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.” Fed. R. Evid. 706(a); Walker v. American Home Shield Long Term Disability Plan, 180
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F.3d 1065, 1071 (9th Cir. 1999). Pursuant to Rule 702, “a witness who is qualified as an expert
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by knowledge, skill, experience, training or education may testify in the form of an opinion or
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otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the
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trier of fact to understand the evidence or to determine a fact in issue . . .” Fed. R. Evid. 702.
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While the court has the discretion to appoint an expert and to apportion costs, including the
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appointment of costs to one side, Fed. R. Evid. 706; Ford ex rel. Ford v. Long Beach Unified
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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. Moreover,
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Rule 706 is not a means to avoid the in forma pauperis statute and its prohibition against using
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public funds to pay for the expenses of witnesses, Manriquez v. Huchins, 2012 WL 5880431,
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*12 (E.D.Cal. 2012), nor does Rule 706 contemplate court appointment and compensation of
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an expert witness as an advocate for Plaintiff, Faletogo v. Moya, 2013 WL 524037, *2
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(S.D.Cal. 2013).
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Discussion
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Plaintiff
requests
appointment
by
the
court
of
“Impartial
Expert
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Witnesses . . . concerning the Code of Silence and Green Wall investigations into Pleasant
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Valley State Prison and the tactics used by Officers to discourage inmates from filing
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complaints, tactics used by Correctional Officers concerning the taking down of an inmate, the
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proper procedures, the Procedures concerning what to do when confronted by an inmate that is
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not feeling well during a Hot day that identifies himself as a Heat Alert Inmate.” (Doc. 111 at
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34:15-21.) While the court is cognizant of the challenges an IFP litigant such as Plaintiff faces
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in retaining an expert witness, the IFP statute does not grant the court the authority to appoint
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expert witnesses on behalf of a party. 28 U.S.C. § 1915; See also Pedraza v. Jones, 71 F.3d
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194, 196 (5th Cir. 1995).
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The only claims remaining in this case are Plaintiff’s claims against Defendants for
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excessive force against Plaintiff in violation of the Eighth Amendment, and related state
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claims.1 Any Code of Silence or Green Wall investigations, or tactics used by officers to
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discourage inmates from filing complaints, are not at issue. While it may be useful to Plaintiff
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to establish the procedures used by officers to “take down” an inmate or assist an overheated
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Heat Alert Inmate, the court considers whether an expert witness would assist the court in
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understanding the evidence or to determining a fact in issue. Fed. R. Evid. 702. Here,
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Plaintiff’s allegations are no more complex than those found in a majority of excessive force
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cases pending before this court. The court does not require an expert witness to determine
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whether Defendants used excessive force. Therefore, Plaintiff’s request for the appointment of
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expert witnesses shall be denied.
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III.
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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s request for the
appointment of expert witnesses is DENIED.
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IT IS SO ORDERED.
Dated:
/s/ Lawrence J. O’Neill
November 4, 2014
UNITED STATES DISTRICT JUDGE
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Defendants indicate in their Pretrial Statement that they do not intend to use expert witnesses at trial.
(Doc. 116 at 10:9-10.)
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