McNeal v. Evert, et al

Filing 201

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/30/15 ORDERING that Plaintiffs March 26, 2014 motion for substitution (ECF No. 172 ) is deemed amended to name Roy Chatham as the proper party for substitution; Defense counsel shall serve a c opy of plaintiffs motion for substitution, along with acopy of this order, on Roy Chatham; Roy Chatham shall have 21 days from the date of this order to file an opposition or statement of no opposition to the motion for substitution; Plaintiffs Mar ch 30, 2015 motions to compel (ECF Nos. 188 , 189 , and 190 ) are denied without prejudice as moot; Plaintiffs April 2, 2015 motion for appointment of counsel (ECF No. 191 ) is denied; and Plaintiffs April 2, 2015 motion for appointment of a psychiatric expert (ECF No. 192 )is denied.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VERNON WAYNE MCNEAL,

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Plaintiff,

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No. 2:05-cv-441-GEB-EFB P

v.

ORDER

EVERT, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. He previously filed a motion to substitute parties pursuant to Federal Rule of

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Civil Procedure 25(a). Currently pending before the court are defendants’ response to the court’s

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February 11, 2015 order regarding the defense’s suggestion of death for defendant Chatham (ECF

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No. 182) and various requests filed by plaintiff in anticipation of trial (ECF Nos. 188, 189, 190,

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191, and 192).

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I.

Suggestion of Death for Defendant Chatham
On February 19, 2014, defense counsel filed a Notice of Suggestion of Death of

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Defendant Chatham. ECF No. 167. Plaintiff responded with his motion for substitution of a

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proper party under Rule 25(a). ECF No. 172. The court found that defendants’ suggestion of

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death was defective because defense counsel had not served it on defendant Chatham’s successors

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or representatives. ECF No. 179 (relying on Barlow v. Ground, 39 F.3d 231, 233 (9th Cir.
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1994)). Likewise, plaintiff had not served his motion for substitution on defendant Chatham’s

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successor or representative. For those reasons, the court denied his motion for substitution

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without prejudice, and, pursuant to Barlow, found that defendants’ defective suggestion of death

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had failed to commence the 90 day limit within which plaintiff could move for substitution under

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Rule 25. Id.

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The court instructed the parties that, to start the 90-day window in which plaintiff must

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file a new motion for substitution or face dismissal of his claims against defendant Chatham,

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defendants were required to file a new suggestion of death with the proper service on defendant

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Chatham’s successor(s) or representative(s). Id. The court ordered that, if defense counsel could

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not discover the identity of Chatham’s successor, counsel should file a declaration documenting

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the steps taken to discover that individual’s identity. Id. Counsel filed a declaration and response

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to that order on March 13, 2015. ECF No. 182. The declaration identified a possible successor

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(i.e. the father of decedent, Roy Chatham) but the response stated that counsel did not serve the

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suggestion of death on that person. Instead, counsel argued that defendants are not obliged to do

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so, stating that “it is the plaintiff’s responsibility to identify the proper party and serve them with

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a copy of the motion for substitution.” Id.

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In light of counsel’s response and the impending trial date, the court ordered the parties to

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appear for a status conference to discuss how to proceed in light of the failure to comply with

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Rule 25. Plaintiff appeared telephonically from the prison. California Deputy Attorney General

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R. Lawrence Bragg appeared on behalf of defendants. In addition to the filings noted above, the

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court also addressed at the status hearing a declaration filed by defense counsel Monica

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Anderson, which was filed forty-five minutes before the hearing. ECF No 198. That declaration

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disclosed that defendant Chatham’s sole assets (a lump sum payment of retirement benefits) were

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distributed to his father outside of probate. Id. Because the asset was distributed outside of

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probate, Ms. Anderson argued that she could not ascertain the proper party for substitution here

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because, effectively, there is no such party.

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No authority is cited for the assertion that where assets are transferred outside of probate
the distributee of those assets is not a proper party within the meaning of Rule 25(a). Indeed,
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although not cited by the defense, there is authority to the contrary. In McSurely v. McClellan,

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753 F.2d 88 (D.C. Cir. 1985), the District of Columbia Circuit found that two decedents’ widows

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were proper parties for substitution under Rule 25(a) even though the assets distributed to them

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did not pass through probate. 753 F.2d at 97, 98. The court in McSurely found determinative

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whether the party to be substituted was a distributee of the deceased defendant’s assets, not

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whether those assets were transferred through probate. Id. at 98. Defense counsel provides no

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authority or legal reasoning why Rule 25(a) should be interpreted to require service of the

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statement of death on the distributee of a probated estate but not the distributee of non-probated

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assets.

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Accordingly, the plaintiff’s motion for substitution (ECF No. 172) is deemed amended to

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name Roy Chatham as the proper party for substitution in place of defendant Chad Chatham. As

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agreed by defense counsel at the hearing, counsel shall serve the motion, along with a copy of this

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order, on Roy Chatham. Any opposition by Roy Chatham to substitution under Rule 25(a) shall

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be filed within 21 days of the date of this order.

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II.

Plaintiff’s Motions
The court also addressed at the status hearing various motions plaintiff filed in

anticipation of trial.
First, plaintiff asks the court to compel defendants to provide a copy of the use of force

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tape interview dated July 11, 2004. ECF No. 188. Plaintiff also seeks a transcript of that tape and

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a copy of his deposition. ECF Nos. 189, 190. Defendants do not oppose these motions and

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defense counsel stated at the April 29, 2015 hearing that they would provide plaintiff with all

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three items. Accordingly, these motions will be denied as moot, without prejudice to their

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renewal should defendants fail to provide the tape, tape transcript, and deposition transcript.

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Plaintiff also seeks appointment of counsel, stating that he is inexperienced in litigation

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and has been suffering from double vision, blurriness, and burning in his eyes since 2013. ECF

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No. 191. District courts lack authority to require counsel to represent indigent prisoners in

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section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In

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exceptional circumstances, the court may request an attorney to voluntarily represent such a
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plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);

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Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether

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“exceptional circumstances” exist, the court must consider plaintiff’s likelihood of success on the

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merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity

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of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court

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did not abuse discretion in declining to appoint counsel). The burden of demonstrating

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exceptional circumstances is on the plaintiff. Id.

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While plaintiff may be an inexperienced litigator, the issues presented by this case are
straightforward (i.e., whether defendants subjected plaintiff to excessive force or failed to

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intervene when others subjected plaintiff to excessive force). And while plaintiff argues that his

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inability to litigate effectively is evidenced by the denial of some motions to compel (and his

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failure to properly seek discovery), the court cannot conclude that plaintiff is unable to effectively

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present his claims based on a single adverse ruling, particularly in light of plaintiff’s partially

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successful opposition to defendants’ motion for summary judgment. See Wilborn v. Escalderon,

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789 F.2d 1328, 1331 (9th Cir. 1986) (that a pro se plaintiff finds litigation difficult does not

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amount to a showing of exceptional circumstances). In addition, plaintiff has not shown that the

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eye condition he developed in 2013 prevents him from effectively presenting his case. Plaintiff

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has presented no evidence detailing the nature or extent of his eye impairment. The court notes

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that plaintiff has made many filings during and since 2013 despite that impairment. Lastly,

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plaintiff has made no showing on the likelihood that he will succeed on his claims against

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defendants. For these reasons, the court finds that exceptional circumstances are not present in

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this case and will therefore deny the request for counsel.

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Finally, plaintiff asks the court to appoint a psychiatric expert to testify “about the effects

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the excessive force has had on [plaintiff’s] mental health” at trial. Under 28 U.S.C. § 1915,

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federal courts may permit an indigent party to file suit without prepaying fees and costs. That

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statute does not authorize courts to subsidize witness fees, however. Hadsell v. IRS, 107 F.3d

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750, 752-53 (9th Cir. 1997) (relying on Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989) (per

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curiam)).
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Though the court cannot pay for the expert plaintiff seeks, Federal Rule of Evidence 706

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authorizes the court to appoint a neutral expert witness and apportion the fee among the parties.

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Where, as here, one party is indigent, the court has discretion to apportion the entire fee to the

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other side. McKinney v. Anderson, 924 F.2d 1500, 1511 (9th Cir. 1991), vacated and remanded

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on other grounds by Helling v. McKinney, 502 U.S. 903 (1991). Plaintiff appears to seek an

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expert to testify on his behalf, rather than a neutral expert, and for that reason, the request must be

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denied. To the extent that plaintiff seeks appointment of a neutral expert, he has made an

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insufficient showing that a neutral expert is needed to promote accurate fact-finding in this action.

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See Gorton v. Todd, 793 F. Supp. 2d 1171, 1177-78 (E.D. Cal. 2011) (the court’s determination to

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appoint a neutral expert is guided by its consideration of whether the expert will promote accurate

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fact-finding, the ability of the indigent party to obtain an expert on his own, and the significance

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of the rights at stake in the case). Accordingly, the motion for appointment of a neutral expert is

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denied.

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III.

Order

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For the reasons stated above, it is hereby ORDERED that:

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1. Plaintiff’s March 26, 2014 motion for substitution (ECF No. 172) is deemed amended

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to name Roy Chatham as the proper party for substitution;

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2. Defense counsel shall serve a copy of plaintiff’s motion for substitution, along with a

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copy of this order, on Roy Chatham;

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3. Roy Chatham shall have 21 days from the date of this order to file an opposition or

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statement of no opposition to the motion for substitution;

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4. Plaintiff’s March 30, 2015 motions to compel (ECF Nos. 188, 189, and 190) are

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denied without prejudice as moot;

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5. Plaintiff’s April 2, 2015 motion for appointment of counsel (ECF No. 191) is denied;

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and

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6. Plaintiff’s April 2, 2015 motion for appointment of a psychiatric expert (ECF No. 192)
is denied.
Dated: April 30, 2015.

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