Flowers v. Johnson et al

Filing 85

ORDER GRANTING 78 80 Requests to Amend Pretrial Order; ORDER DENYING 76 Request for Appointment of an Expert and Appointment of Counsel, signed by Magistrate Judge Jennifer L. Thurston on 7/20/18. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:15-cv-01778-JLT (PC)

RUPERT FLOWERS,

ORDER GRANTING REQUESTS TO
AMEND PRETRIAL ORDER (Docs. 78, 80)

Plaintiff,
v.

ORDER DENYING REQUEST FOR
APPOINTMENT OF AN EXPERT AND
APPOINTMENT OF COUNSEL (Doc. 76)

B. JOHNSON, et al.,
Defendants.

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The defendants have requested their witness list be amended to substitute Tony Diaz to for

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Raul Morales, due to Mr. Morales’ unavailability for trial. (Doc. 78) Also, they seek to replace

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V. Bustos for J. Navarro, due to counsel’s error. (Doc. 80) The Court sees no prejudice that

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would result in the amendments.

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In addition, the plaintiff asks the Court to appoint him an expert or, if this request is

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denied, to appoint him counsel. (Doc. 76) Under 28 U.S.C. § 1915, federal courts may permit an

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indigent party to file suit without prepaying fees and costs. That statute does not authorize courts

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to subsidize expert fees, however. Hadsell v. IRS, 107 F.3d 750, 752 (9th Cir. 1997) (relying on

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Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989) (per curiam)). Though the Court cannot pay

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for the expert plaintiff seeks, Federal Rule of Evidence 706 authorizes the Court to appoint an

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expert witness and apportion the fee among the parties. Where, as here, one party is indigent, the

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Court has discretion to apportion the entire fee to the other side. McKinney v. Anderson, 924 F.2d
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1500, 1511 (9th Cir. 1991), vacated and remanded on other grounds by Helling v. McKinney, 502

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U.S. 903 (1991). Nevertheless, Rule 706 allows only for the appointment of a neutral expert. It

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does not provide for the appointment of an expert on plaintiff’s behalf. Gorton v. Todd, 793

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F.Supp.2d 1171, 1177-78 (E.D. Cal. 2011). Accordingly, that request is DENIED.

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The plaintiff, once again, requests appointment of an attorney, if the Court denies his

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request for appointment of an expert. (Doc. 76). He asserts that his inexperience in legal matters

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will prolong the trial and the superior ability of a lawyer to cross examine the witnesses, as

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justification for the appointment. Id. at 5. These reasons, in essence, are the same that he put

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forth in his prior motions for appointment of counsel. (Docs. 27, 61) For the same reasons Mr.

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Flowers’ prior request for counsel was denied1 (Doc. 64), the Court DENIES this current request.

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ORDER

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Based upon the foregoing, the Court ORDERS:

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1.

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The requests to modify the pretrial order (Docs. 78, 80) are GRANTED. Tony

Diaz is substituted for Raul Morales and V. Bustos is substituted for J. Navarro;

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2.

The plaintiff’s request for appointment of an expert or a lawyer are DENIED.

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IT IS SO ORDERED.
Dated:

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July 20, 2018

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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Moreover, the Court has been unable to locate a lawyer willing to accept appointment in this case.

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