Dawson v. Commissioner of the Department of Corrections and Rehabilitation et al

Filing 52

ORDER DENYING Requests for Attorney's Fees, Appointment of Counsel, and Appointment of Expert Witness 51 ; ORDER REQUIRING Plaintiff to File Opposition or Statement of Non-Opposition to Defendants' Motion to Dismiss 27 , signed by Magistrate Judge Gary S. Austin on 8/31/17: 14-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ISAAC DA’BOUR DAWSON,

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Plaintiff,

ORDER DENYING REQUESTS FOR
ATTORNEY’S FEES, APPOINTMENT
OF COUNSEL, AND APPOINTMENT
OF EXPERT WITNESS
(ECF No. 51.)

Defendants.

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1:15-cv-01867-DAD-GSA-PC

ORDER REQUIRING PLAINTIFF TO
FILE OPPOSITION OR STATEMENT
OF NON-OPPOSITION TO
DEFENDANTS’ MOTION TO
DISMISS
(ECF No. 27.)

vs.
CDCR, et al.,

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FOURTEEN-DAY DEADLINE

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I.

BACKGROUND

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On August 18, 2017, the court entered findings and recommendations, recommending

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that this case be dismissed for Plaintiff’s failure to comply with the court’s orders requiring him

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to file an opposition to Defendants’ motion to dismiss. (ECF No. 50.) On August 28, 2017,

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Plaintiff filed objections to the findings and recommendations, asserting that he filed an
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opposition to the motion to dismiss after the court issued its order on July 24, 2017.1 (ECF No.

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51.) Plaintiff also requested attorney fees, appointment of counsel, and appointment of an

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expert witness. (Id.)

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II.

REQUESTS FOR COUNSEL, EXPERT WITNESS, AND ATTORNEY FEES

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A.

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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

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for 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.

Request for Appointment of Counsel

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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

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of 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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In the present case, the court does not find the required exceptional circumstances. At

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this stage of the proceedings, the court cannot make a determination that Plaintiff is likely to

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succeed on the merits. Defendants have filed a motion to dismiss this case, which is pending

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and may result in the dismissal of the case. Moreover, based on the court’s record, Plaintiff is

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able to adequately articulate his claims and respond to the court’s orders. Plaintiff’s claims,

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arising from allegations of an improper strip search and retaliation, do not appear complex.

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Therefore, Plaintiff’s request for appointment of counsel shall be denied. Plaintiff is advised

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that he is not precluded from renewing the motion for appointment of counsel at a later stage of

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the proceedings.

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On July 24, 2017, the court issued an order striking Plaintiff’s opposition filed on July 20,
2017, for lack of signature, and required Plaintiff to submit a new opposition bearing his signature within fourteen
days. (ECF No. 40.)
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B.

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The court has the discretion to appoint an expert pursuant to Rule 706(a) of the Federal

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Rules of Evidence. In relevant part, Rule 706 states that “[o]n a party’s motion or on its own,

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the court may order the parties to show cause why expert witnesses should not be appointed . .

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.” Fed. R. Evid. 706(a); Walker v. American Home Shield Long Term Disability Plan, 180

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F.3d 1065, 1071 (9th Cir. 1999). Pursuant to Rule 702, “a witness who is qualified as an expert

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by knowledge, skill, experience, training or education may testify in the form of an opinion or

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

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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 the

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appointment of costs to one side, Fed. R. Evid. 706; Ford ex rel. Ford v. Long Beach Unified

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

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would likely be apportioned to the government, the court should exercise caution. Moreover,

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

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public funds to pay for the expenses of witnesses, Manriquez v. Huchins, 2012 WL 5880431,

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*12 (E.D.Cal. 2012), nor does Rule 706 contemplate court appointment and compensation of

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an expert witness as an advocate for Plaintiff, Faletogo v. Moya, 2013 WL 524037, *2

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(S.D.Cal. 2013).

Request for Appointment of Expert Witness

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Here, Plaintiff requests the court to appoint an expert witness to represent Plaintiff.

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While the court is cognizant of the challenges an IFP litigant such as Plaintiff faces in retaining

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an expert witness, the IFP statute does not grant the court the authority to appoint expert

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witnesses on behalf of a party. 28 U.S.C. § 1915; See also Pedraza v. Jones, 71 F.3d 194, 196

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(5th Cir. 1995). Moreover, Rule 706 is not meant for the appointment of an expert witness as

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an advocate for Plaintiff.

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Plaintiff has not explained why he believes an expert witness is needed in this case.

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The court considers whether an expert witness would assist the court in understanding the

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evidence or to determining a fact in issue. Fed. R. Evid. 702. Here, Plaintiff’s allegations are

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no more complex than those found in a majority of cases alleging an improper strip search or
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retaliation pending before this court. The court does not require an expert witness to determine

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whether Defendants improperly strip-searched Plaintiff or retaliated against him. Therefore,

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Plaintiff’s request for the appointment of an expert witness shall be denied.
Request for Attorney’s Fees

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C.

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Plaintiff also requests attorney’s fees. Plaintiff is not entitled to attorney’s fees, because

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he is representing himself in this action. Because Plaintiff is not represented by an attorney, he

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is not entitled to recover attorney’s fees, even if he prevails in this action. See Friedman v.

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Arizona, 912 F.2d 328, 333 n.2 (9th Cir. 1990), superseded by statute as state in Warsoldier v.

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Woodford, 418 F.3d 989 (9th Cir. 2005); Gonzalez v. Kangas, 814 F.2d 1411, 1412 (9th Cir.

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1987); see also Rickley v. Cnty. of Los Angeles 654 F.3d 950, 954 (9th Cir. 2011) (“The Court

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accordingly adopted a per se rule, categorically precluding an award of attorney's fees under §

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1988 to a pro se attorney-plaintiff.”) Therefore, Plaintiff’s request for attorney fees shall be

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denied.

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III.

PLAINTIFF’S OPPOSITION

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Plaintiff asserts that he filed an opposition to Defendants’ motion to dismiss after the

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court issued its order on July 24, 2017. However, the court has no record of an opposition filed

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by Plaintiff following the July 24, 2017, order. (Court Docket.) Plaintiff shall be granted

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fourteen days in which to file a new opposition, or statement of non-opposition, bearing his

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signature.

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The August 18, 2017, findings and recommendations shall not be vacated. If Plaintiff

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fails to file a new opposition within fourteen days, this case shall be referred to the district

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judge for further proceedings.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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Plaintiff’s request for the appointment of counsel is DENIED, without prejudice;

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Plaintiff’s request for the appointment of an expert witness is DENIED;

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3.

Plaintiff’s request for attorney’s fees is DENIED;

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4.

Within fourteen days of the date of service of this order, Plaintiff shall file an

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opposition or statement of non-opposition to the motion to dismiss filed by

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Defendants Guzman, Gonzales, Marsh, and Johnson on December 14, 2016; and

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5.

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Plaintiff’s failure to comply with this order may result in the dismissal of this
case.

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IT IS SO ORDERED.
Dated:

August 31, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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