Reno Rios v. Gipson et al

Filing 96

ORDER denying without prejudice Plaintiff's Motion for Appointment of Counsel and Expert Witness 94 signed by Magistrate Judge Sheila K. Oberto on 3/6/2018. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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1:12-cv-01334-LJO-SKO (PC)

RENO RIOS,

ORDER DENYING WITHOUT
PREJUDICE PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL
AND EXPERT WITNESS

v.
CONNIE GIPSON, et al.,

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(Doc. 94)

Defendants.

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I.

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Introduction
Plaintiff, Reno Rios, is a state prisoner proceeding pro se and in forma pauperis in this

civil rights action pursuant to 42 U.S.C. § 1983. On March 1, 2018, Plaintiff filed a motion
seeking the appointment of counsel and requesting to have an independent expert witness
appointed. (Doc. 94.) The time for Defendants to respond has not yet lapsed. Local Rule 230(l).

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However, Defendants will not be prejudiced by an early ruling since Plaintiff’s motion is denied.

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II.

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Plaintiff’s Motion for Appointment of Counsel
Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to

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represent Plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for

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the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional

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circumstances the Court may request the voluntary assistance of counsel pursuant to section

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1915(e)(1). Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the Court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success of

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the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).

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The court does not find the required exceptional circumstances in this case. Even

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assuming Plaintiff is not well versed in the law and that he has made serious allegations which, if

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proved, would entitle him to relief, his case is not exceptional. This Court is faced with similar

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cases almost daily. Further, at this stage in the proceedings, the Court cannot make a

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determination that Plaintiff is likely to succeed on the merits, and based on a review of the record

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in this case, the Court does not find that Plaintiff cannot adequately articulate his claims. Id.

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III.

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Plaintiff’s Motion for Appointment of Expert Witness
Federal Rule of Evidence 706 (“Rule 706”) provides for court appointment of an expert

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witness upon a party’s motion or on its own volition. “If scientific, technical, or other specialized

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knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a

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

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thereto in the form of an opinion or otherwise . . .” Fed. R. Evid. 702. The Court has the

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discretion to appoint an expert and to apportion costs, including the apportionment of costs to one

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side. Fed. R. Evid. 706; Ford ex rel. Ford v. Long Beach Unified School Dist., 291 F.3d 1086,

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1090 (9th Cir. 2002); Walker v. American Home Shield Long Term Disability Plan, 180 F.3d

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1065, 1071 (9th Cir. 1999). However, where the costs would likely be apportioned to the

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government, the Court should exercise caution.

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Plaintiff’s pro se, in forma pauperis status alone is not grounds for the appointment of an

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expert witness to assist Plaintiff with his case and Rule 706 is not a meant to provide an avenue to

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avoid the in forma pauperis statute and its prohibition against using public funds to pay for the

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expenses of witnesses. Manriquez v. Huchins, No. 1:09-cv-00456-LJO-BAM PC, 2012 WL

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5880431, at *12 (E.D. Cal. Nov. 21, 2012). Nor does Rule 706 contemplate court appointment

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and compensation of an expert witness as an advocate for Plaintiff. Faletogo v. Moya, No.
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12cv631 GPC (WMc), 2013 WL 524037, at *2 (S.D. Cal. Feb. 23, 2013) (quotation marks

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omitted).

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The appointment of an expert witness under Rule 706 is intended to benefit the trier of

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fact, not a particular litigant. Faletogo, 2013 WL 524037, at *2; Bontemps v. Lee, No. 2:12-cv-

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0771 KJN P, 2013 WL 417790, at *3-4 (E.D. Cal. Jan. 31, 2013); Honeycutt, 2011 WL 6301429,

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at *1; Wilds, 2011 WL 737616, at *4; Gamez v. Gonzalez, No. 08cv1113 MJL (PCL), 2010 WL

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2228427, at *1 (E.D. Cal. Jun. 3, 2010). The medical issue in this case is not of such complexity

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so as to require the assistance of a neutral expert at this time. Ford, 291 F.3d at 1090; Walker,

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180 F.3d at 1071.

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IV.

Order

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Accordingly, it is HEREBY ORDERED that Plaintiff’s motion for the appointment of

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counsel and expert witness, filed on March 1, 2018, (Doc. 94), is DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

March 6, 2018

/s/

UNITED STATES MAGISTRATE JUDGE

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Sheila K. Oberto

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.