Davis v. Walker et al

Filing 154

ORDER APPOINTING EXPERT signed by District Judge Kimberly J. Mueller on 9/11/2017 ORDERING 140 The court APPOINTS Steven Hugh Mannis, M.D. as a neutral expert to assist thecourt under Federal Rule of Evidence 706; The court apportions the cost of t he expert to defendants to be split equally among them; The Clerk of the Court shall send copies of documents to Dr. Mannis; Defendants shall take all steps necessary to provide Dr. Mannis with a copy of plaintiff's medical file since January 20 07 within 14 days from the date of this order; Dr. Mannis shall review the documents forwarded by the Clerk and plaintiff's medical records, perform an examination of plaintiff at a time to be determined, and within 45 days thereafter submit a written report to the court. Dr. Mannis shall send the report once completed to the undersigned at the USDC, EDCA, Chambers of Hon. Kimberly J. Mueller. (Reader, L) Modified on 9/12/2017 (Reader, L).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNARD LEE DAVIS,

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Plaintiff,

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No. 2:08-cv-0593 KJM DB P

v.
JAMES WALKER, et al.,

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Defendants.

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KENNARD LEE DAVIS,
Plaintiff,

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v.

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No. 2:10-cv-2139 KJM DB P

ORDER APPOINTING EXPERT

JAMES WALKER, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding in forma pauperis with civil rights actions

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under 42 U.S.C. § 1983. Plaintiff is proceeding in both actions through a guardian ad litem,

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Ronnie Tolliver. See ECF Nos. 40; 81.1 By order filed May 18, 2017, this court referred these

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Throughout this order citations to documents filed in the court’s Electronic Case Filing (ECF)
system are first to the record in Case No. 2:08-cv-0593 KJM DB and second to the record in Case
No. 2:10-cv-2139 KJM DB. Citations to page numbers are to the page numbers assigned by the
ECF system.
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matters to Sujean Park, Pro Bono Coordinator for the Eastern District of California, to confirm

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arrangements with a medical expert. ECF No. 132 at 2; 191 at 2. Ms. Park has confirmed the

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availability of Steven Hugh Mannis, M.D. for appointment as provided by Federal Rule of Civil

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Procedure 706.

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I.

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Appointment of Neutral Expert
Under 28 U.S.C. § 1915, federal courts may permit an indigent party to file suit

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without prepaying fees and costs. That statute does not authorize courts to subsidize expert fees,

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however. Hadsell v. C.I.R., 107 F.3d 750, 752 (9th Cir. 1997) (relying on Tedder v. Odel, 890

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F.2d 210, 211-12 (9th Cir. 1989) (per curiam)). The court has determined that an independent

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medical examination is required in this action. See ECF No. 132 at 2; 191 at 2. While the court

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cannot itself pay for the expert, Federal Rule of Evidence 706 authorizes the court to appoint an

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expert witness and apportion the fee among the parties. Where, as here, one party is indigent, the

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court has discretion to apportion the entire fee to the other side. McKinney v. Anderson, 924 F.2d

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1500, 1511 (9th Cir. 1991), vacated and remanded on other grounds by Helling v. McKinney, 502

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U.S. 903 (1991). Rule 706 allows only for the appointment of a neutral expert. It does not

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provide for the appointment of an expert on plaintiff’s behalf. Gorton v. Todd, 793 F. Supp. 2d

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1171, 1177-78 (E.D. Cal. 2011).

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Several factors guide the court’s decision whether to appoint a neutral expert.

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First, and most importantly, the court considers whether the opinion of a neutral expert will

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promote accurate factfinding. Id. at 1179. Additionally, the court may consider the ability of the

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

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1182-84.

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In this case, the court has concluded that a neutral medical expert is essential for

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accurate determination of the current status of plaintiff’s physical health, including any current

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need for treatment, physical therapy, pain medication or other treatment, in the areas of injury

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allegedly sustained by plaintiff that are the subject of plaintiff’s September 12, 2011 motion for

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preliminary injunction filed in Case No. 2:10-cv-2139 KJM DB P, ECF No. 31, and the operative

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complaints in these actions, ECF Nos. 11; 1, including the following:

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a. The fingers of plaintiff’s left hand on which he had surgery in February 2008;

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b. Plaintiff’s lower back;

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c. Plaintiff’s right knee; and

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d. Plaintiff’s neck, back, shoulder, hip, and spinal cord.

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The court is required by orders of the United States Court of Appeals for the Ninth

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Circuit to proceed with these actions in spite of plaintiff’s mental health status. The court has

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twice appointed counsel to represent plaintiff, and subsequently granted meritorious motions to

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withdraw. Plaintiff is currently proceeding with this action through a guardian ad litem who has

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failed to respond to a court order, see ECF Nos. 141; 200, and appears to have abandoned his

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responsibilities in this action. In light of the constraints facing plaintiff, the court concludes that

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accurate determination of the facts weighs heavily in favor of the appointment of a neutral

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medical expert who can examine plaintiff and his medical records and provide opinions on

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whether plaintiff’s medical treatment has been within the standard of care and whether plaintiff

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requires any ongoing medical treatment that he is not receiving. Plaintiff is incarcerated, indigent

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and suffering from significant mental illness and therefore faces significant barriers to finding his

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own experts. Finally, the Eighth Amendment right to receive adequate medical care is a

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significant right. At this juncture, the options for adjudicating this action are extremely limited,

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and appointment of a neutral expert will assist the court in evaluating how to proceed. The

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circumstances of these cases warrant the appointment of a neutral expert.

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II.

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Nature and Scope of Expert Review
With the assistance of the court’s Pro Bono Coordinator, the court has determined

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to engage Steven Hugh Mannis, M.D. to act as a neutral expert, and he has agreed. In view of

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plaintiff’s indigency, the court will exercise its discretion and apportion the costs of Dr. Mannis

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entirely to defendants. Although the costs will be apportioned entirely to defendants, Dr. Mannis

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shall act as an expert on behalf of the court and not on behalf of any party in these actions.

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Dr. Mannis shall review plaintiff’s medical records since January 2007, perform an

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examination of plaintiff at a time to be determined, and provide a written report to the court

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discussing whether the medical care provided to plaintiff for the conditions described in this order

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met the community standard of care. While the court briefly reviews the applicable law below, it

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expressly does not delegate the court’s ultimate legal conclusion to Dr. Mannis.

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In Case No. 2:08-cv-0593 KJM DB P, plaintiff alleges defendants violated his

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rights under the Eighth Amendment by requiring him to “push an illegal and unauthorized push-

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cart weighing in excessive of 100 pounds, while handcuffed and waist restraint, for over . . . a half

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. . . mile.” ECF No. 11 at 14 (verbatim transcription). Plaintiff alleges this caused injury to his

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lower back, neck, hip and spinal cord and that he suffered “serious pain and discomfort.” Id.

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Plaintiff alleges that he was denied medical treatment for these injuries, both when they occurred

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and as the pain increased over time. Id, passim. See also ECF No. 13 at 7-9.

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In Case No. 2:10-cv-2139 KJM DB P, plaintiff alleges defendants violated his

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rights under the Eighth Amendment by (1) delaying removal of sutures following surgery on

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fingers in his left hand, leading to “the wounds from the surgery heal[ing] around the

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sutures/stitches, and infection, swelling, discoloration of the skin, lack of movement of the finger

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joints, yellow pus discharge, pain and suffering,” ECF No. 1 at 6; (2) intentionally leaving an

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“unauthorized” 1 1/2 inch long pin in the fifth finger of his left hand and subsequently refusing to

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remove it, id. at 8; and (3) denying plaintiff’s requests for treatment of post-operative pain,

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excessive swelling and skin discoloration, as well as absence of movement “at the surgery area

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joint,” id. at 8-12.

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Finally, in a motion for preliminary injunction filed in Case No. 2:10-cv-2139

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KJM DB P, plaintiff alleges he was denied medical treatment for knuckle joint pain in the second

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and fourth fingers of his left hand, as well as for lower back pain and right knee pain. ECF No.

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31 at 3.

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By way of background only, a prison official violates the Eighth Amendment’s

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proscription of cruel and unusual punishment where he or she deprives a prisoner of the minimal

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civilized measure of life’s necessities with a “‘sufficiently culpable state of mind.’” Farmer v.
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Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). An

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Eighth Amendment claim predicated on the denial of medical care requires a plaintiff to establish

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that he had a serious medical need, that the defendants were aware of that need and that their

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response to it was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006);

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see also Estelle v. Gamble, 429 U.S. 97, 106 (1976). Thus, to prevail, plaintiff must show both

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that his medical needs were objectively serious, and that defendant possessed a sufficiently

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culpable state of mind. Wilson v. Seiter, 501 U.S. at 297-99; McKinney v. Anderson, 959 F.2d

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853, 854 (9th Cir. 1992). A serious medical need is one that significantly affects an individual’s

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daily activities, an injury or condition a reasonable doctor or patient would find worthy of

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comment or treatment, or the existence of chronic and substantial pain. See, e.g., McGuckin v.

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Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds by WMX Techs. v.

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Miller, 104 F.2d 1133, 1136 (9th Cir.1997) (en banc). A serious medical need exists if the failure

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to treat plaintiff’s condition could result in further significant injury or the unnecessary and

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wanton infliction of pain. Jett, 439 F.3d at 1096.

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Deliberate indifference may be shown by the denial, delay or intentional

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interference with medical treatment or by the way in which medical care is provided. Hutchinson

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v. United States, 838 F.2d 390, 394 (9th Cir. 1988). To act with deliberate indifference, a prison

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official must both “be aware of facts from which the inference could be drawn that a substantial

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risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. at

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837. Thus, a defendant is liable if he knows that plaintiff faces “a substantial risk of serious harm

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and disregards that risk by failing to take reasonable measures to abate it.” Id. at 847. “[I]t is

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enough that the official acted or failed to act despite his knowledge of a substantial risk of serious

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harm.” Id. at 842. A physician need not fail to treat an inmate altogether in order to violate that

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inmate’s Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir.

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1989). A failure to competently treat a serious medical condition, even if some treatment is

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prescribed, may constitute deliberate indifference in a particular case. Id. However, it is

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important to differentiate common law negligence claims of malpractice from claims predicated

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on violations of the Eighth Amendment’s prohibition of cruel and unusual punishment. In
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asserting the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support

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this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980) (citing

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Estelle, 429 U.S. at 105-06); see also Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). It

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is well established that mere differences of opinion concerning the appropriate treatment cannot

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be the basis of an Eighth Amendment violation. Jackson v. McIntosh, 90 F.3d 330, 331-32 (9th

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Cir. 1996); Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). Evidence that

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medical caregivers disagreed “as to the need to pursue one course of treatment over another” is

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also insufficient, by itself, to establish deliberate indifference. Jackson, 90 F.3d at 332.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. The court appoints Steven Hugh Mannis, M.D. as a neutral expert to assist the
court under Federal Rule of Evidence 706;

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2. The court apportions the cost of the expert to defendants to be split equally
among them;

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3. The Clerk of the Court shall send copies of ECF No. 11 in Case No. 2:08-cv-

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0593 KJM DB P and copies of ECF Nos. 1 and 31 in Case No. 2:10-cv-2139 KJM DB P to Dr.

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Mannis for his review at the following address: Steven Hugh Mannis, M.D., 3525 Del Mar

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Heights Road, Suite 231, San Diego, CA 92130;

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4. Defendants shall take all steps necessary to provide Dr. Mannis with a copy of
plaintiff’s medical file since January 2007 within fourteen days from the date of this order;

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5. Dr. Mannis shall review the documents forwarded by the Clerk and plaintiff’s

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medical records, perform an examination of plaintiff at a time to be determined, and within 45

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days thereafter submit a written report to the court. The report will discuss and evaluate

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plaintiff’s claims that he was denied adequate medical care. Specifically, Dr. Mannis’s

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professional medical opinion is requested as to whether the treatment, or lack thereof, by

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defendants satisfied the community standard of care and, if it did not, why and how it deviated

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from that standard. If additional time is necessary to prepare the report, Dr. Mannis may contact

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the court and arrange for more time; and

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6. Dr. Mannis shall send the report once completed to the undersigned at the

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United States District Court, Eastern District of California, Chambers of Hon. Kimberly J.

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Mueller, 501 I Street, Sacramento, CA 95814.

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DATED: September 11, 2017.

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UNITED STATES DISTRICT JUDGE

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