Brown v. Gipson et al

Filing 73

ORDER DENYING 68 Plaintiff's Motion Requesting an Expert Witness Pursuant to Federal Rule of Evidence 706; ORDER DENYING 68 Plaintiff's Motion for the Appointment of Counsel; and ORDER DENYING 69 Plaintiff's Motion for an Investigator signed by Magistrate Judge Barbara A. McAuliffe on 2/6/2018. (Jessen, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

WILLIAM BROWN,

12
13
14
15

Plaintiff,
v.
W. RASLEY,
Defendant.

Case No. 1:13-cv-02084-AWI-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
REQUESTING AN EXPERT WITNESS
PURSUANT TO FEDERAL RULE OF
EVIDENCE 706
ORDER DENYING PLAINTIFF’S MOTION
FOR THE APPOINTMENT OF COUNSEL
ORDER DENYING PLAINTIFF’S MOTION
FOR AN INVESTIGATOR

16
17

(ECF Nos. 68, 69)

18
19
20
21
22

Plaintiff William Brown is a state prisoner proceeding pro se and in forma pauperis in this
civil rights action pursuant to 42 U.S.C. § 1983.
On February 5, 2018, Plaintiff filed a motion requesting an expert witness and the

23

appointment of counsel. (ECF No. 68.) That same day, Plaintiff filed an ex parte motion for an

24

investigator to assist him, at the government’s expense. (ECF No. 69.)

25

Because these motions discuss overlapping issues and requests for relief, the Court finds it

26

most efficient to address them jointly in this order. Furthermore, although Defendant Rasley has

27

not had an opportunity to respond, the Court does not find any response necessary. Defendant will

28

not be prejudiced by the immediate consideration of these motions. Local Rule 230(l).
1

1

I.

Request for an Expert Witness and For Appointment of Counsel
As he has done previously, (ECF No. 56), Plaintiff’s first motion requests an expert

2
3

witness pursuant to Federal Rule of Evidence 706, and the appointment of counsel. The Court

4

addresses these requests in turn.

5

A.

Request for Expert Witness

6

In support of his request for an expert witness, Plaintiff states that an expert witness will

7

assist him in articulating the body of facts and other implicit or explicit evidence related to the

8

violation of his constitutional rights here. Plaintiff asserts that an expert witness will be able to

9

assist court-appointed counsel, which he has also requested.

10

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

11

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

12

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

13

may be appropriate when “scientific, technical, or other specialized knowledge will assist the

14

trier-of-fact to understand the evidence or decide a fact in issue.” Ledford v. Sullivan, 105 F.3d

15

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

16

Plaintiff has not identified any pending motion for which expert assistance is needed. Nor

17

does the Court find that any expert witness is needed to evaluate any scientific, technical or other

18

specialized information in support of any currently pending motion. Thus, Plaintiff’s motion for

19

the appointment of a neutral expert witness is, at the very least, premature. See Vanderbusch v.

20

Chokatos, No. 1:13-cv-01422-LJO-EPG, 2017 WL 4574121, at *1 (E.D. Cal. Oct. 13, 2017)

21

(plaintiff’s request for an expert witness denied on the ground that a trial date had not yet been

22

scheduled); Flournoy v. Maness, No. 2:11-cv-02844-KJM-EFB, 2016 WL 6493970, at *1 n.1

23

(E.D. Cal. Nov. 2, 2016) (declining to appoint a medical expert because “there are no pending

24

motions for summary judgment at this time”).
Therefore, Plaintiff’s motion for appointment of an expert witness will be denied, without

25
26

prejudice, as premature.

27

///

28

///
2

1

B.

2

Plaintiff seeks the appointment of counsel, and states in support that he is unable to afford

Request for Appointment of Counsel

3

counsel and lawyers he has contacted are not interested in representing him, that his

4

imprisonment limits his ability to litigate, and that he lacks legal knowledge. Plaintiff further

5

asserts that this case is complex, that counsel would better present his case, and that he has been

6

denied access to jailhouse lawyers and legal training. Plaintiff further asserts that he has a

7

relationship with an attorney for legal services for prisoners with children, and that it may be

8

easiest and most convenient to appoint that attorney here.

9

As Plaintiff has been previously advised, he does not have a constitutional right to

10

appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in

11

part on other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the Court cannot require an

12

attorney to represent Plaintiff pursuant to 28 U.S.C. §1915(e)(1), Mallard v. U.S. Dist. Court for

13

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

14

court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113

15

F.3d at 1525. Without a reasonable method of securing and compensating counsel, the court will

16

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

17

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

18

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

19

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

20

In this case, the Court does not find the required exceptional circumstances for the

21

appointment of counsel. Even if it is assumed that Plaintiff is not well versed in the law and that

22

he has made serious allegations which, if proved, would entitle him to relief, his case is not

23

exceptional. A review of the record in this case shows that Plaintiff is able to articulate his claims

24

and arguments, and the legal issue he proceeds upon is not complex. Furthermore, at this stage in

25

the proceedings, the Court cannot make a determination that Plaintiff is likely to succeed on the

26

merits. Since Plaintiff’s previous request, the circumstances have not changed such that the Court

27

finds it appropriate to begin the search for volunteer counsel here.

28

///
3

For these reasons, Plaintiff’s request for the appointment of counsel will be denied,

1
2
3

without prejudice.
II.

4

Motion for an Investigator
Finally, Plaintiff filed a motion seeking a court-appointed investigator to investigate

5

emails and phone records, locate inmates or agents, advise Plaintiff confidentially in this action,

6

and testify at trial on various issues regarding Plaintiff’s case. In support, Plaintiff asserts that he

7

is indigent, but the assistance of an investigator is necessary to advise him regarding his case and

8

to aid in the investigation and prosecution of his claims.

9

The expenditure of public funds on behalf of an indigent litigant is proper only when

10

authorized by Congress. See Tedder v. Odel, 890 F.2d 210 (9th Cir.1989) (citations omitted). The

11

in forma pauperis statute does not authorize the expenditure of public funds in a civil rights case

12

for the purposes sought by Plaintiff in the instant request. Therefore, Plaintiff’s motion for a

13

court-appointed investigator will be denied.

14

III.

Conclusion and Order

15

For the reasons explained above, it is HEREBY ORDERED that:

16

1.

17
18
19

Plaintiff’s request for an expert witness and his request for the appointment of

counsel, filed on February 5, 2018 (ECF No. 68), are both denied, without prejudice; and
2.

Plaintiff’s ex parte motion for an investigator to assist him, filed on February 5,

2018 (ECF No. 69), is denied.

20
21
22

IT IS SO ORDERED.
Dated:

/s/ Barbara

February 6, 2018

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

23
24
25
26
27
28
4