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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 VERNON WAYNE McNEAL, 11 14 2:05-cv-00441-GEB-EFB Plaintiff, 12 13 No. v. LOCKIE, ERVIN, CHATHAM, and VAN LEER, ORDER DENYING PLAINTIFF’S MOTIONS FOR RECONSIDERATION Defendants. 15 16 On June 22, 2015, Plaintiff filed a motion, (ECF No. 17 222), in which he seeks reconsideration of the Magistrate Judge’s 18 June 5, 2015 order denying his request for an expert witnesses 19 concerning “the use of force and medical issues.” (Pl.’s Decl. 20 Supp. Mot. Requesting Experts 1, ECF No. 203.) The Magistrate 21 Judge denied Plaintiff’s request in that order stating, inter 22 alia: 23 24 25 26 27 28 [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. 1 1 2 3 4 5 6 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.) 7 Also, on June 25, 2015, Plaintiff filed a motion, (ECF 8 No. 223), in which he seeks reconsideration of the Magistrate 9 Judge’s June 15, 2015 order denying his request for a “neutral 10 psychiatric 11 force on [P]laintiff[’s] mental health.” (Pl.’s Decl. Supp. Mot. 12 Requesting Neutral 13 Magistrate Judge 14 stating, inter alia: 15 expert to explain the Psychiatric denied effects Expert Plaintiff’s 1, of . . . ECF request No. in excessive 212.) that The order 26 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. 27 (Order 1:26-2:14, June 15, 2015, ECF No. 219 (internal quotation 28 marks and citation omitted).) 16 17 18 19 20 21 22 23 24 25 2 1 Local Rule 303(f) Judge shall standard Judge’s ruling] is the ‘clearly erroneous or contrary to law’ 4 standard set forth in 28 U.S.C. § 636(b)(1)(A).” “A [M]agistrate 5 [J]udge’s 6 district court is left with the definite and firm conviction that 7 a mistake has been committed.” Mackey v. Frazier Park Pub. Util. 8 Dist., No. 1:12-CV-00116-LJO-JLT, 2012 WL 5304758, at *2 (E.D. 9 Cal. 25, 2012) are (quoting ‘clearly Sec. of a the 3 findings [reconsideration that assigned Oct. in “[t]he 2 factual use states Magistrate erroneous’ Farms v. Int’l when Bhd. the of 10 Teamsters, 124 F.3d 999, 1014 (9th Cir. 1997). “An order ‘is 11 contrary to law when it fails to apply or misapplies relevant 12 statutes, case law, or rules of procedure.’” Id. (quoting Knutson 13 v. Blue Cross & Blue Shield of Minn., 254 F.R.D. 553, 556 (D. 14 Minn. 2008)). 15 Plaintiff has not shown that the Magistrate Judge’s 16 referenced decisions denying his requests for the appointment of 17 expert witnesses were clearly erroneous or contrary to law. See 18 e.g., Robinson v. Adams, No. 1:08-cv-01380-AWI-BAN PC, 2014 WL 19 6461342, at *2 (E.D. Cal. Nov. 17, 2014) (denying reconsideration 20 of 21 request for the appointment of an expert witness regarding use of 22 force procedures, stating “[t]he Magistrate Judge . . . correctly 23 determined that Plaintiff’s allegations of excessive force are 24 not so complicated as to require an expert witness”); Trufariello 25 v. Long Island R. R. Co., 458 F.3d 80, 90 (2d Cir. 2006) (“A 26 witness’s 27 admissible under Rule 701 to show the cause and extent of such 28 injuries if it is based on the witness’s own perceptions.”). the magistrate testimony judge’s as to decision the pain 3 denying he . . the . plaintiff’s experienced is 1 Therefore, each of Plaintiff’s requests for reconsideration, (ECF 2 Nos. 222, 223), is DENIED. 3 Dated: July 2, 2015 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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