(PC) Hardy v. Santoro, et al.

Filing 143

ORDER DENYING 141 Plaintiff's Motion for Appointment of a Neutral Expert Witness signed by Magistrate Judge Erica P. Grosjean on 1/18/2023. (Lawrence, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KRISTIN HARDY,

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Plaintiff,

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v.
R. MORENO, et al.,

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Case No. 1:21-cv-00327-ADA-EPG (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF A NEUTRAL
EXPERT WITNESS
(ECF No. 141)

Defendants.

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Kristin Hardy (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action filed pursuant to 42 U.S.C. § 1983.

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On January 17, 2023, Plaintiff filed a motion requesting appointment of a neutral expert

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witness. (ECF No. 141). This motion is now before the Court. For the reasons that follow, the

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Court will deny Plaintiff’s motion.

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I.

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

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Rules of Evidence. See Walker v. American Home Shield Long Term Disability Plan, 180

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F.3d 1065, 1071 (9th Cir. 1999). In relevant part, Rule 706(a) states that, “[o]n a party’s

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motion or on its own, the court may order the parties to show cause why expert witnesses

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should not be appointed….” Fed. R. Evid. 706(a). While the Court has the discretion to

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appoint an expert and to apportion costs, including the apportionment of costs to one side, Fed.
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R. Evid. 706(c)(2); Ford ex rel. Ford v. Long Beach Unified School Dist., 291 F.3d 1086, 1090

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(9th Cir. 2002), Rule 706 is not a means to avoid the in forma pauperis statute’s “prohibition

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

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WL 5880431, at *12 (E.D. Cal. 2012), nor does Rule 706 “contemplate court appointment and

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compensation of an expert witness as an advocate for one of the parties,” Faletogo v. Moya,

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2013 WL 524037, at *2 (S.D. Cal. 2013).
“Where a party has filed a motion for appointment of a neutral expert under Rule 706,

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the court must provide a reasoned explanation of its ruling on the motion. Several factors guide

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the court’s decision. First, and most importantly, the court must consider whether the opinion

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of a neutral expert will promote accurate fact finding. The court may also consider the ability

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of the indigent party to obtain an expert and the significance of the rights at stake in the case.

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Expert witnesses should not be appointed where they are not necessary or significantly useful

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for the trier of fact to comprehend a material issue in a case.” Johnson v. Cate, 2015 WL

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5321784, at *2 (E.D. Cal. 2015) (citations omitted).

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II.

ANALYSIS
Plaintiff’s motion for appointment of an expert witness will be denied. Plaintiff “seeks

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appointment of a neutral scientific expert to assist the court in understanding behavior in the

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context of the prison environment.” (ECF No. 141, p. 1). Plaintiff “anticipates” that a Rules

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Violation Report related to the incident “may” be raised as a defense. (Id.). In their answer,

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Defendants allege that Plaintiff’s conduct contributed to his damages. (Id.). However,

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“psychologist [sic] have found that human behavior is a complex matter….” (Id.).

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“[S]ituational factors such as stress, psychological distress, trauma, etc., are often discounted

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and not considered.” (Id. at 2). The events at issue involved a high stress situation, and “the

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opinion of a neutral expert can aid the court in better understanding [Plaintiff’s] behavior in

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refusing the initial request to remove his clothing.” (Id.). Plaintiff also alleges that this case is

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complex and discovery has been extensive.

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Plaintiff’s motion will be denied. This case is proceeding on Plaintiff’s unreasonable

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search and seizure claims against defendants Valencia, Moreno, Chavez, Dohs, and Ceballos,
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based on Plaintiff’s allegations that after Plaintiff was subjected to a full body scan, he was

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immediately subjected to an additional strip search without justification. (ECF Nos. 22, 42, &

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43). This case is not proceeding on allegations regarding a Rules Violation Report (“RVR”),

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which Plaintiff himself recently acknowledged. (ECF No. 139, p. 2) (“The actions of

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defendants described as illegal in the amended complaint relates [sic] to an unreasonable search

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and seizure, and not the issuance of an RVR.”). Thus, a neutral expert that would testify as to

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Plaintiff’s behavior leading to an RVR is not necessary or significantly useful for the trier of

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fact to comprehend a material issue in this case. Plaintiff does allege that Defendants may raise

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the RVR as a defense, but they have not yet done so. Thus, the RVR, and Plaintiff’s behavior

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that led to its issuance, are not material issues in this case.
The fact that Plaintiff’s case is allegedly complex in other ways has no bearing on

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whether a neutral expert should be appointed to aid the fact finder in understanding Plaintiff’s

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behavior leading to the issuance of an RVR.
Accordingly, Plaintiff’s motion requesting appointment of a neutral expert witness will

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be denied.

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III.

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ORDER
For the foregoing reasons, IT IS ORDERED that Plaintiff’s motion requesting

appointment of a neutral expert (ECF No. 141) is DENIED.

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IT IS SO ORDERED.
Dated:

January 18, 2023

/s/
UNITED STATES MAGISTRATE JUDGE

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