Ransom v. Department of Corrections & Rehabilitations, et al.

Filing 125

ORDER DENYING Plaintiff's 119 Motion to Appoint Counsel and an Expert Medical Doctor, signed by Magistrate Judge Michael J. Seng on 12/21/15. (Marrujo, C)

1
2
3
4
5
6
7
8
9
10

UNITED STATES DISTRICT COURT

11

EASTERN DISTRICT OF CALIFORNIA

12
13

BRYAN E. RANSOM,

14

Plaintiff,

15
16
17

v.
DEPARTMENT OF CORRECTIONS
AND REHABILITATION, et al.,

CASE NO. 1:11-cv-00068-AWI-MJS (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL AND
AN EXPERT MEDICAL DOCTOR
(ECF No. 119)

Defendants.

18
19
20

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

21
22
23
24

rights action brought pursuant to 28 U.S.C. § 1983.

Defendants Bondoc, Madina, Swingle, Neubarth, Corea and Dhah on Plaintiff’s Eighth
Amendment medical indifference claims.1 (ECF Nos. 21 & 26.)
Before the Court is Plaintiff’s motion for appointment of counsel and/or an expert

25
26

The action proceeds against

medical doctor. (ECF No. 119.)

27
1

28

Defendant Greaves was dismissed (ECF No. 67.), and Defendant Punt has defaulted (ECF
Nos. 53 & 54.)

1

I.

2
3
4
5
6
7
8
9

Plaintiff seeks an expert to assist him in proving that Defendants acted with
medical indifference and to help prove damages. Under Rule 706(a) of the Federal
Rules of Evidence, the Court has discretion to appoint a neutral expert on its own motion
or on the motion of a party. Fed. R. Evid. 706(a); Walker v. Am. Home Shield Long
Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir.1999).

12
13
14
15
16

for Plaintiff. See Gamez v. Gonzalez, No. 08cv1113 MJL (PCL), 2010 WL 2228427, at
*1 (E.D. Cal. June 3, 2010) (citation omitted).
The appointment of an independent expert is to assist the trier of fact, not a
particular litigant. See Joe S.Cecil & Thomas E. Willging, Court-Appointed Experts, at
538 (Fed. Jud. Center 1994) (Rule 706 is meant to promote accurate fact finding where
issues are complex, esoteric and beyond the ability of the fact finder to understand
without expert assistance). Plaintiff suggests that an expert is needed to assist the trier
of fact, but it is clear he is seeking only an expert is to assist him in proving his case and
the amount of damages he is seeking. Rule 706 does not exist to assist a party.

17
18
19
20
21
22
23
24
25
26
27

Rule 706 does not

contemplate court appointment and compensation of an expert witness as an advocate

10
11

MOTION FOR APPOINTMENT OF AN EXPERT

Appointment of an independent expert under “Rule 706 should be reserved for
exceptional cases in which the ordinary adversary process does not suffice.” In re Joint
E. & S. Dists. Asbestos Litig., 830 F.Supp. 686, 693 (E.D.N.Y. 1993) (allowing
appointment of independent expert in mass tort case). This case is not such an
exceptional case.
II.

MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff does not have a constitutional right to appointed counsel in this action,

Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an
attorney to represent Plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United
States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814,
1816 (1989).

28
2

1
2
3
4
5
6
7
8

In certain exceptional circumstances the Court may request the voluntary
assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.
However, without a reasonable method of securing and compensating counsel, the
Court will seek volunteer counsel only in the most serious and exceptional cases. In
determining whether Aexceptional circumstances exist, the district court must evaluate
both the likelihood of success of the merits [and] the ability of the [Plaintiff] to articulate
his claims pro se in light of the complexity of the legal issues involved.@ Id. (internal
quotation marks and citations omitted).

9
10
11
12
13
14
15
16
17
18
19

In the present case, the Court does not find the required exceptional
circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that
he has made serious allegations which, if proved, would entitle him to relief, his case is
not exceptional. This Court is faced with similar cases almost daily. Further, at this
stage in the proceedings, the Court cannot make a determination that Plaintiff is likely to
succeed on the merits, and based on a review of the record in this case, the Court does
not find that Plaintiff cannot adequately articulate his claims. Id.
III.

CONCLUSION AND ORDER
Accordingly, it is HEREBY ORDERED that:
Plaintiff’s motion for appointment of counsel and/or an expert witness is DENIED.
(ECF No. 119.)

20
21

IT IS SO ORDERED.

22
23

Dated:

December 21, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
24
25
26
27
28
3