Moore v. Gipson et al

Filing 110

ORDER DENYING 109 Motion for Appointment of Expert signed by Magistrate Judge Barbara A. McAuliffe on 12/4/2018. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MERRICK JOSE MOORE,

Case No. 1:13-cv-01820-BAM (PC)

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Plaintiff,

ORDER DENYING MOTION FOR
APPOINTMENT OF EXPERT

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v.
(ECF No. 109)
GIPSON, et al,
Defendants.

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Plaintiff Merrick Jose Moore (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on

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Plaintiff’s Eighth Amendment claims for excessive force against Defendants Meier, Casas,

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Childress, and Adams, and for failure to intervene against Defendants Ford and Thornburg. All

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parties have consented to Magistrate Judge jurisdiction. (ECF Nos. 7, 74.)

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Currently before the Court is Plaintiff’s motion for appointment of an expert witness, filed

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November 8, 2018. (ECF No. 109.) Defendants have not filed a response, and the deadline to do

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so has expired. The motion is deemed submitted. Local Rule 230(l).

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Federal Rule of Evidence 706 authorizes courts, within their discretion, to appoint a

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neutral, independent expert witness. Fed. R. Evid. 706(a); Walker v. Am. Home Shield Long

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Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999). The appointment of such an expert

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witness may be appropriate when “scientific, technical, or other specialized knowledge will assist
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the trier-of-fact to understand the evidence or decide a fact in issue.” Ledford v. Sullivan, 105

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F.3d 354, 358-59 (7th Cir. 1997).

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However, the statute authorizing a petitioner’s in forma pauperis status does not authorize

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the expenditure of public funds for expert witnesses. See 28 U.S.C. § 1915; Tedder v. Odel, 890

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F.2d 210, 211–12 (9th Cir. 1989) (per curiam) (expenditure of public funds on behalf of indigent

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litigant is proper only when authorized by Congress); Boring v. Kozakiewicz, 833 F.2d 468, 474

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(3d Cir. 1987) (no provision to pay fees for expert witnesses). An indigent prisoner litigant must

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bear his or her own costs of litigation, including witnesses. See, e.g., Tedder, 890 F.2d at 211.

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Furthermore, although a court may apportion costs for the expert witnesses among the

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parties, including apportionment of costs to one side, Fed. R. Evid. 706; Ford ex rel. Ford v. Long

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Beach Unified School Dist., 291 F.3d 1086, 1090 (9th Cir. 2002); Walker, 180 F.3d at 1071,

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where the cost would likely be apportioned to the state, the court should exercise caution.

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Plaintiff requests appointment of “a neutral expert witness who has the requisite

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knowledge, skill, training, experience and education to form a specialized opinion in regards to

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the injury and long term effect the injury will have on Plaintiff’s everyday living and mobility.”

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(ECF No. 109, p. 1.) Although Plaintiff refers to the expert as neutral, he argues that “the expert

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can offer evidence to substantiate Plaintiff’s claim to the jury and Court . . .” (Id. at 2.)

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Federal Rule of Evidence 706 does not contemplate court appointment and compensation

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of an expert witness as an advocate for Plaintiff. Brooks v. Tate, 2013 WL 4049043, *1 (E.D.

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Cal. Aug. 7, 2013) (denying appointment of medical expert on behalf of state prisoner in section

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1983 action); Gorrell v. Sneath, 2013 WL 3357646, * 1 (E.D. Cal. Jul. 3, 2013) (purpose of court-

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appointed expert is to assist the trier of fact, not to serve as an advocate for a particular party).

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Moreover, Rule 706 is not a means to avoid the in forma pauperis statute and its prohibition

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against using public funds to pay for the expenses of witnesses. Manriquez v. Huchins, 2012 WL

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5880431, * 12 (E.D. Cal. 2012).

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There is no indication that a neutral expert will be required to assist the trier of fact in this

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matter. Plaintiff’s allegations of excessive force are not so complicated as to require the

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appointment of an expert witness to assist the court and/or a jury. Faletogo v. Moya, 2013 WL
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524037, *1 (S.D. Cal. Feb. 12, 2013) (finding issues involved in prisoner’s excessive force claim

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not so complex as to require the testimony of expert witnesses). In determining whether

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Defendants subjected Plaintiff to excessive force in violation of the Eighth Amendment’s

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prohibition on cruel and unusual punishments, the main inquiry will be whether the force was

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applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically for

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the purpose of causing harm. Hudson v. McMillian, 503 U.S. 1, 6–7 (1992) (citing Whitley v.

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Albers, 475 U.S. 312, 320–21 (1986)). The trier of fact does not require scientific, technical, or

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specialized knowledge regarding CDCR’s use of force policies and procedures to make such a

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determination. Faletogo, 2013 WL 524037 at *1.

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Accordingly, Plaintiff’s motion for appointment of an expert witness, (ECF No. 109), is
DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

December 4, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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