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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM SUTHERLAND, 12 Plaintiff, 13 14 15 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. 16 17 18 19 I. BACKGROUND 20 William Sutherland ("Plaintiff") is a state prisoner proceeding pro se and in forma 21 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This action now proceeds 22 on the First Amended Complaint filed by Plaintiff on December 6, 2010, against defendants 23 Correctional Officers A. Fernando and M. Jericoff (“Defendants”) for use of excessive force in 24 violation of the Eighth Amendment, and related state claims. (Doc. 15.) This case is scheduled 25 for a telephonic trial confirmation hearing on November 19, 2014, and jury trial on January 6, 26 2015. 27 28 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.) 1 1 II. APPOINTMENT OF EXPERT WITNESS 2 Legal Standards 3 The court has the discretion to appoint an expert pursuant to Rule 706(a) of the Federal 4 Rules of Evidence. In relevant part, Rule 706 states that “[o]n a party’s motion or on its own, 5 the court may order the parties to show cause why expert witnesses should not be appointed . . 6 .” Fed. R. Evid. 706(a); Walker v. American Home Shield Long Term Disability Plan, 180 7 F.3d 1065, 1071 (9th Cir. 1999). Pursuant to Rule 702, “a witness who is qualified as an expert 8 by knowledge, skill, experience, training or education may testify in the form of an opinion or 9 otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the 10 trier of fact to understand the evidence or to determine a fact in issue . . .” Fed. R. Evid. 702. 11 While the court has the discretion to appoint an expert and to apportion costs, including the 12 appointment of costs to one side, Fed. R. Evid. 706; Ford ex rel. Ford v. Long Beach Unified 13 School Dist., 291 F.3d 1086, 1090 (9th Cir. 2002); Walker, 180 F.3d at 1071, where the cost 14 would likely be apportioned to the government, the court should exercise caution. Moreover, 15 Rule 706 is not a means to avoid the in forma pauperis statute and its prohibition against using 16 public funds to pay for the expenses of witnesses, Manriquez v. Huchins, 2012 WL 5880431, 17 *12 (E.D.Cal. 2012), nor does Rule 706 contemplate court appointment and compensation of 18 an expert witness as an advocate for Plaintiff, Faletogo v. Moya, 2013 WL 524037, *2 19 (S.D.Cal. 2013). 20 Discussion 21 Plaintiff requests appointment by the court of “Impartial Expert 22 Witnesses . . . concerning the Code of Silence and Green Wall investigations into Pleasant 23 Valley State Prison and the tactics used by Officers to discourage inmates from filing 24 complaints, tactics used by Correctional Officers concerning the taking down of an inmate, the 25 proper procedures, the Procedures concerning what to do when confronted by an inmate that is 26 not feeling well during a Hot day that identifies himself as a Heat Alert Inmate.” (Doc. 111 at 27 34:15-21.) While the court is cognizant of the challenges an IFP litigant such as Plaintiff faces 28 in retaining an expert witness, the IFP statute does not grant the court the authority to appoint 2 1 expert witnesses on behalf of a party. 28 U.S.C. § 1915; See also Pedraza v. Jones, 71 F.3d 2 194, 196 (5th Cir. 1995). 3 The only claims remaining in this case are Plaintiff’s claims against Defendants for 4 excessive force against Plaintiff in violation of the Eighth Amendment, and related state 5 claims.1 Any Code of Silence or Green Wall investigations, or tactics used by officers to 6 discourage inmates from filing complaints, are not at issue. While it may be useful to Plaintiff 7 to establish the procedures used by officers to “take down” an inmate or assist an overheated 8 Heat Alert Inmate, the court considers whether an expert witness would assist the court in 9 understanding the evidence or to determining a fact in issue. Fed. R. Evid. 702. Here, 10 Plaintiff’s allegations are no more complex than those found in a majority of excessive force 11 cases pending before this court. The court does not require an expert witness to determine 12 whether Defendants used excessive force. Therefore, Plaintiff’s request for the appointment of 13 expert witnesses shall be denied. 14 III. 15 16 CONCLUSION Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s request for the appointment of expert witnesses is DENIED. 17 18 19 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill November 4, 2014 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 1 Defendants indicate in their Pretrial Statement that they do not intend to use expert witnesses at trial. (Doc. 116 at 10:9-10.) 3

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