Benanti v. Matevousian
Filing
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ORDER DENYING Plaintiff's 89 Request for Appointment of Expert Witness, Investigator, and Third Motion for Appointment of Counsel signed by Magistrate Judge Stanley A. Boone on 1/7/2020. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MICHAEL BENANTI,
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Plaintiff,
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v.
MATEVOUSIAN,
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Defendants.
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Case No. 1:17-cv-01556-LJO-SAB (PC)
ORDER DENYING PLAINTIFF’S REQUEST
FOR APPOINTMENT OF EXPERT WITNESS,
INVESTIGATOR, AND THIRD MOTION FOR
APPOINTMENT OF COUNSEL
[ECF No. 89]
Plaintiff Michael Benanti is appearing pro se and in forma pauperis in this civil rights action
pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
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Currently before the Court is Plaintiff’s request for appointment of an expert witness,
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investigator, and third request for appointment of counsel, filed January 6, 2020. The Court deems
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Plaintiff’s motion suitable for review without an opposition.
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I.
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DISCUSSION
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A.
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Federal Rule of Evidence 706(a) permits a “district court to apportion all the cost [of an expert
Appointment of Expert Witness
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witness] to one side” in an appropriate case, as when[] one of the parties in an action is indigent” and
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“the expert would significantly help the court.” McKinney v. Anderson, 924 F.2d 1500, 1511 (9th Cir.
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1991), vacated on other grounds sub nom. Helling v. McKinney, 502 U.S. 903 (1991), judgment
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reinstated, 959 F.2d 853 (9th Cir. 1991), aff’d, 509 U.S. 25 (1993). An expert witness may testify to
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help the trier of fact understand the evidence or determine a fact at issue. Fed. R. Evid. 702. Under
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Rule 706(a) of the Federal Rules of Evidence, the Court has discretion to appoint a neutral expert on
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its own motion or on the motion of a party. 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). Rule 706 does not contemplate court
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appointment and compensation of an expert witness as an advocate for Plaintiff. See Gamez v.
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Gonzalez, No. 08cv1113 MJL (PCL), 2010 WL 2228427, at *1 (E.D. Cal. June 3, 2010). Indeed,
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appointment of an independent expert under “Rule 706 should be reserved for exceptional cases in
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which the ordinary adversary process does not suffice.” In re JoinT E. & S. Dists. Asbestos Litig., 830
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F.Supp. 686, 693 (E.D.N.Y. 1993) (allowing appointment of independent expert in mass tort case).
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This case is not such an exceptional case.
The appointment of an independent expert is to assist the trier of fact, not a particular litigant.
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The Court may not appoint an expert witness to advocate for Plaintiff at trial. Plaintiff fails to provide
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a valid basis to require the appointment of a neutral expert witness to assist the Court and/or a jury.
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Indeed, the Court was able to resolve Defendants’ motion for summary judgment without expert
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testimony as Plaintiff’s claim of deliberate indifference was not so complex as to require an expert
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witness to present or prove the case. See, e.g., Noble v. Adams, No. 1:03-cv-05407-AWI-SMS (PC),
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2009 WL 3028242, at *1 (E.D. Cal. Sept. 16, 2009) (denying plaintiff’s request to appoint medical
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expert witness in section 1983 action because the “issues are not so complex as to require the
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testimony of an expert”). Accordingly, Plaintiff’s motion for an appointment of an expert witness are
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denied.
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B.
Appointment of Investigator
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Plaintiff has not shown that expenditure of public funds to appoint him an investigator is
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proper. See Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989) (“[T]he expenditure of public funds
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on behalf of an indigent is proper only when authorized by Congress.” (citation omitted)); Graves-
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Bey v. Hedgepeth, No. 1:08-cv-01718-LJO-GSA (PC), 2009 WL 3789162, at *1 (E.D. Cal. Nov. 10,
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2009) (denying plaintiff’s motion for appointment of an investigator).
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C.
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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 any attorney to represent
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plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern
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District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court
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may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand v. Rowland, 113
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F.3d at 1525.
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Appointment of Counsel
Without a reasonable method of securing and compensating counsel, the Court will seek
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 on the
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merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the
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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. Even if it
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assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if
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proved, would entitle him to relief, his case is not exceptional. The legal issues present in this action
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are not complex, and Plaintiff has thoroughly set forth his allegations in the complaint. In addition,
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the Court finds that Plaintiff is not likely to succeed on the merits, as Findings and Recommendations
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are pending to grant Defendants’ motion for summary judgment. (ECF No. 85.) Circumstances
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common to most prisoners, such as lack of legal education and limited law library access, do not
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establish exceptional circumstances that would warrant a request for voluntary assistance of counsel.
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While a pro se litigant may be better served with the assistance of counsel, so long as a pro se litigant,
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such as Plaintiff in this instance, is able to “articulate his claims against the relative complexity of the
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matter,” the “exceptional circumstances” which might require the appointment of counsel do not exist.
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Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when
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district court denied appointment of counsel despite fact that pro se prisoner “may well have fared
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better-particularly in the realm of discovery and the securing of expert testimony.”) In the present
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case, the Court does not find the required exceptional circumstances. Accordingly, Plaintiff’s third
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motion for the appointment of counsel is HEREBY DENIED, without prejudice.
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II.
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CONCLUSION AND ORDER
Based on the foregoing, it is HEREBY ORDERED that Plaintiff’s motion for appointment of
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expert witness, investigator, and counsel is DENIED.
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IT IS SO ORDERED.
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Dated:
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January 7, 2020
UNITED STATES MAGISTRATE JUDGE
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