McNeal v. Evert, et al

Filing 224

ORDER signed by Judge Garland E. Burrell, Jr on 7/2/15 DENYING 222 and 223 Motions for Reconsideration. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VERNON WAYNE McNEAL,

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2:05-cv-00441-GEB-EFB

Plaintiff,

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No.

v.
LOCKIE, ERVIN, CHATHAM, and
VAN LEER,

ORDER DENYING PLAINTIFF’S
MOTIONS FOR RECONSIDERATION

Defendants.

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On June 22, 2015, Plaintiff filed a motion, (ECF No.

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222), in which he seeks reconsideration of the Magistrate Judge’s

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June 5, 2015 order denying his request for an expert witnesses

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concerning “the use of force and medical issues.” (Pl.’s Decl.

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Supp. Mot. Requesting Experts 1, ECF No. 203.) The Magistrate

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Judge denied Plaintiff’s request in that order stating, inter

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alia:

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[Plaintiff] has not shown that such . . .
expert[s are] needed to promote accurate
fact-finding. He simply asserts, “Defendant’s
experts only want to talk about the use of
force and plaintiff’s injuries. Plaintiff
wants to show the jury the use of force and
plaintiff’s
injuries
with
the
aid
of
experts.” ECF No. 203 at 3. Plaintiff has not
indicated what useful information a neutral
expert would provide that will not otherwise
be presented to the court. See Gorton v.
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Todd, 793 F. Supp. 2d 1171, 1177-78 (E.D.
Cal. 2011) (the court’s determination to
appoint a neutral expert is guided by its
consideration of whether the expert will
promote accurate fact-finding, the ability of
the indigent party to obtain an expert on his
own, and the significance of the rights at
stake in the case).
(Order 1:26-2:6, June 5, 2015, ECF No. 213.)

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Also, on June 25, 2015, Plaintiff filed a motion, (ECF

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No. 223), in which he seeks reconsideration of the Magistrate

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Judge’s June 15, 2015 order denying his request for a “neutral

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psychiatric

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force on [P]laintiff[’s] mental health.” (Pl.’s Decl. Supp. Mot.

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Requesting

Neutral

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Magistrate

Judge

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stating, inter alia:

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expert

to

explain

the

Psychiatric
denied

effects

Expert

Plaintiff’s

1,

of . . .

ECF

request

No.
in

excessive

212.)
that

The

order

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To appoint a neutral expert, the court must
find that, among other things, . . . the
expert is necessary to promote accurate factfinding. It is not clear that plaintiff is
unqualified to testify to the effects of the
alleged excessive force on his mental health.
Under Federal Rule of Evidence 701, a lay
witness may testify to opinions that are: (1)
rationally based on the witness’s perception;
(2) helpful to clearly understanding the
witness’s testimony or to determining a fact
in issue; and (3) not based on scientific,
technical, or other specialized knowledge
within the scope of Rule 702. . . . To the
extent that plaintiff’s testimony will simply
contain a description of his symptoms,
diagnoses, or opinions that any lay person
could make based on his symptoms, such
testimony is admissible under Rule 701 and no
expert is necessary to advance it. Further,
plaintiff has not shown that this case
presents rare circumstances which warrant the
appointment of the court’s own expert.

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(Order 1:26-2:14, June 15, 2015, ECF No. 219 (internal quotation

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marks and citation omitted).)

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Local

Rule

303(f)

Judge

shall

standard

Judge’s ruling] is the ‘clearly erroneous or contrary to law’

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standard set forth in 28 U.S.C. § 636(b)(1)(A).” “A [M]agistrate

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[J]udge’s

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district court is left with the definite and firm conviction that

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a mistake has been committed.” Mackey v. Frazier Park Pub. Util.

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Dist., No. 1:12-CV-00116-LJO-JLT, 2012 WL 5304758, at *2 (E.D.

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Cal.

25,

2012)

are

(quoting

‘clearly

Sec.

of

a

the

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findings

[reconsideration

that

assigned

Oct.

in

“[t]he

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factual

use

states

Magistrate

erroneous’

Farms

v.

Int’l

when

Bhd.

the

of

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Teamsters, 124 F.3d 999, 1014 (9th Cir. 1997). “An order ‘is

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contrary to law when it fails to apply or misapplies relevant

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statutes, case law, or rules of procedure.’” Id. (quoting Knutson

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v. Blue Cross & Blue Shield of Minn., 254 F.R.D. 553, 556 (D.

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Minn. 2008)).

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Plaintiff has not shown that the Magistrate Judge’s

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referenced decisions denying his requests for the appointment of

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expert witnesses were clearly erroneous or contrary to law. See

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e.g., Robinson v. Adams, No. 1:08-cv-01380-AWI-BAN PC, 2014 WL

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6461342, at *2 (E.D. Cal. Nov. 17, 2014) (denying reconsideration

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of

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request for the appointment of an expert witness regarding use of

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force procedures, stating “[t]he Magistrate Judge . . . correctly

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determined that Plaintiff’s allegations of excessive force are

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not so complicated as to require an expert witness”); Trufariello

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v. Long Island R. R. Co., 458 F.3d 80, 90 (2d Cir. 2006) (“A

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witness’s

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admissible under Rule 701 to show the cause and extent of such

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injuries if it is based on the witness’s own perceptions.”).

the

magistrate

testimony

judge’s

as

to

decision

the

pain

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denying

he

.

.

the

.

plaintiff’s

experienced

is

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Therefore, each of Plaintiff’s requests for reconsideration, (ECF

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Nos. 222, 223), is DENIED.

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Dated:

July 2, 2015

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