Caesar v. Beard, et al.

Filing 48

FINDINGS and RECOMMENDATIONS Recommending that Plaintiff's 43 Motion for Preliminary Injunction/Permanent Injunction be Denied signed by Magistrate Judge Barbara A. McAuliffe on 07/18/2017. Referred to Judge Drozd.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANNY CAESAR,

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Plaintiff,
v.
JEFFREY BEARD, et al.,

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Defendants.

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Case No.: 1:13-cv-01726-DAD-BAM (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING THAT PLAINTIFF’S
MOTION FOR PRELIMINARY
INJUNCTION/PERMANENT INJUNCTION BE
DENIED
(ECF No. 43)

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

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rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302.

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Currently before the Court is Plaintiff’s request for a preliminary injunction/permanent
injunction with supporting declaration, filed on May 25, 2017. (ECF No. 43.)

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I.

Motion for Preliminary Injunction/Permanent Injunction

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Plaintiff requests that the Court issue an order to Warden M.E. Spearman of High Desert State

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Prison, where Plaintiff is currently housed. Plaintiff states that Warden Spearman is not a party to this

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action, but he seeks for the Court to order Warden Spearman to send Plaintiff for a professional

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medical diagnosis by a neurologist, or to have a neurologist visit Plaintiff at the prison. Plaintiff asserts

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that he requires diagnostic testing which is necessary for him to prove his damages in this action.

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Plaintiff argues that results from an outside, experienced neurologist will prove and support his claims

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at trial. Plaintiff states that he does not have time to exhaust his remedies through that system because

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he will be irreparably harmed and will suffer permanent damage.
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A.

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Standard

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The purpose of a preliminary injunction is to preserve the status quo if the balance of equities

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so heavily favors the moving party that justice requires the court to intervene to secure the positions

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until the merits of the action are ultimately determined. Univ. of Texas v. Camenisch, 451 U.S. 390,

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395, 101 S. Ct. 1830, 68 L. Ed. 2d 175 (1981). “A plaintiff seeking a preliminary injunction must

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establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the

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absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

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the public interest.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S. Ct. 365,

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374, 172 L. Ed. 2d 249 (2008). “[A] preliminary injunction is an extraordinary and drastic remedy,

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one that should not be granted unless the movant, by a clear showing, carries the burden of

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persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S. Ct. 1865, 138 L. Ed. 2d 162 (1997)

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(quotations and citations omitted) (emphasis in original).

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“A federal court may issue an injunction [only] if it has personal jurisdiction over the parties

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and subject matter jurisdiction over the claim; it may not attempt to determine the rights of persons not

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before the court.” Zepeda v. United States Immigration Serv., 753 F.2d 719, 727 (9th Cir. 1985). The

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pendency of this action does not give the Court jurisdiction over prison officials in general. Summers

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v. Earth Island Institute, 555 U.S. 488, 491–93, 129 S. Ct. 1142, 173 L. Ed. 2d 1 (2009); Mayfield v.

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United States, 599 F.3d 964, 969 (9th Cir. 2010). The Court’s jurisdiction is limited to the parties in

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this action and to the viable legal claims upon which this action is proceeding. Summers, 555 U.S. at

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491–93; Mayfield, 599 F.3d at 969.

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The standard for a permanent injunction is essentially the same as for a preliminary injunction,

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with the exception that the plaintiff must show actual success, rather than a likelihood of success. See

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Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12, 107 S. Ct. 1396, 94 L. Ed. 2d 542

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(1987).

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B.

Analysis

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From Plaintiff’s arguments, it appears that the primary purpose of his request is to have an

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expert appointed to assist him with expert testimony in prosecuting his case. The court has the

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discretion to appoint an expert pursuant to Rule 706(a). In relevant part, Rule 706 states that “[o]n a
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party’s motion or on its own, the court may order the parties to show cause why expert witnesses

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should not be appointed. . . . “ Fed. R. Evid. 706(a); Walker v. American Home Shield Long Term

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Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999). Pursuant to Rule 702, “[a] witness who is

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qualified as an expert by knowledge, skill, experience, training or education may testify in the form of

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an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will

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help the 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 apportionment

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

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1086, 1090 (9th Cir. 2002); Walker, 180 F.3d at 1071, where the cost would likely be apportioned to

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the government, the court should exercise caution. Manriquez v. Huchins, No. 1:09-cv-00456-LJO-

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BAM-PC, 2012 WL 5880431, at *12 (E.D. Cal. 2012).

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Here, the expert is not for neutral purposes to assist the court or trier of fact, but is instead

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sought by Plaintiff an advocate. Rule 706 does not contemplate court appointment and compensation

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of an expert witness as an advocate for Plaintiff. Manriquez, 2012 WL 5880431 at *14 (purpose of a

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court-appointed expert is to assist the trier of fact, not to serve as an advocate); Brooks v. Tate, No.

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1:11-cv-01503-AWI-DLB-PC, 2013 WL 4049043, *2 (E.D. Cal. Aug. 7, 2013) (avoiding bias or

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otherwise assisting one party is not the purpose of Rule 706); Gorrell v. Sneath, No. 1:12-cv-0554-

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JLT, 2013 WL 3357646, *1–2 (E.D. Cal. Jul. 3, 2013) (purpose of court-appointed expert is to assist

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the trier of fact, not to serve as an advocate for a particular party). Thus, the appointment of an expert

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at Plaintiff’s request is not appropriate.

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II.

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For these reasons, the Court HEREBY RECOMMENDS that Plaintiff's motion for

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Conclusion and Recommendation

preliminary/permanent injunction, filed May 25, 2017 (ECF No. 43), be DENIED.

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These Findings and Recommendation will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days

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after being served with these Findings and Recommendation, Plaintiff may file written objections with

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the court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” Plaintiff is advised that failure to file objections within the specified time may
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result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. Wilkerson

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v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.

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1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

July 18, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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