Norwood v Nanganama, et al.,

Filing 153

ORDER signed by Magistrate Judge Allison Claire on 11/18/15 DENYING 145 Motion for an expert witness.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY NORWOOD,

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No. 2:09-cv-2929 JAM AC P

Plaintiff,
v.

ORDER

NANGANAMA, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. Currently before the court is plaintiff’s renewed motion for an expert witness.

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ECF No. 145. Defendant has responded (ECF No. 146) and plaintiff has replied (ECF No. 146).

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Plaintiff’s surviving claim against defendant Kaur is that she deliberately misdiagnosed

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him when she examined him in July 2009 because she believed that a correct diagnosis of scabies

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would create civil liability against the medical department. ECF No. 108 at 3, 7, 10-11; ECF No.

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110; ECF No. 111. Plaintiff previously moved for appointment of an expert dermatologist early

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in this case. ECF No. 20. That request was denied because an expert witness was deemed

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unnecessary at that early stage. ECF No. 45 at 11. In light of the impending trial, plaintiff has

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again moved for an expert witness in this case. ECF No. 145.

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Plaintiff seeks a dermatology expert to examine him with an ultraviolet light and

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microscope “in an attempt to detect eggs, feces and new or old burro[w]ing etc.” Id. Although
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plaintiff specifies an expert and the cost for that expert conducting an examination, he states that

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any expert appointed by the court would be acceptable. Id.; ECF No. 147. Defendant objects to

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the request on the grounds that plaintiff’s current condition has little bearing on his claims in this

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case; he is seeking an advocate, not a neutral expert; and he has the means to pay for an expert.

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ECF No. 146.

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Federal Rule of Evidence 706 authorizes the appointment of a neutral expert witness, with

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expenses shared by the parties. The appointment of an independent expert witness pursuant to

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Rule 706 is within the court’s discretion, Walker v. American Home Shield Long Term Disability

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Plan, 180 F.3d 1065, 1071 (9th Cir. 1999), and may be appropriate when “scientific, technical, or

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other specialized knowledge will assist the trier-of-fact to understand the evidence or decide a

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fact in issue,” Ledford v. Sullivan, 105 F.3d 354, 358-59 (7th Cir. 1997). However, the statute

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authorizing plaintiff’s in forma pauperis status does not authorize the expenditure of public funds

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for expert witnesses. See 28 U.S.C. § 1915; Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir.

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1989) (per curiam) (expenditure of public funds on behalf of indigent litigant is proper only when

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authorized by Congress); Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 1987) (no provision

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to pay fees for expert witnesses). The federal courts have uniformly held that an indigent prisoner

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litigant must bear his own costs of litigation, including witnesses. Tedder, supra, 890 F.2d at 211

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(in forma pauperis statute, 28 U.S.C. § 1915, does not authorize waiver of fees or expenses for an

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indigent’s witnesses).

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In this case, it appears that plaintiff is seeking to have the court appoint an expert witness

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to advocate on his behalf. However, even if plaintiff is truly seeking a neutral expert, the court

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does not find that the issues in this case are complicated such that the testimony of a neutral

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expert would be warranted. Moreover, as defendant points out, her alleged conduct took place

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over six years ago and plaintiff has not provided any evidence that an evaluation of his current

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condition would have any relevance to his condition six years ago. Even if an expert could detect

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evidence of old infections, there is nothing to indicate that the date of those infections could be

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identified with the accuracy necessary to establish that plaintiff had scabies when he was

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examined by defendant Kaur in July 2009. Plaintiff’s request for appointment of an expert
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dermatologist pursuant to Federal Rule of Evidence 706 will therefore be denied.
Plaintiff’s request is also reasonably construed as a request for appointment of a medical

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expert on plaintiff’s behalf . In contrast to the procedures under Federal Rule of Evidence 706,

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the expenses of an expert retained on behalf of a prisoner litigant may be recovered if

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preauthorized and arranged by counsel appointed by this court’s Pro Bono Panel. The United

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States Supreme Court has ruled that district courts lack authority to require counsel to represent

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indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298

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(1989). In certain exceptional circumstances, the district court may request the voluntary

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assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017

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(9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).
“When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the

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likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims

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pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965,

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970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden

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of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to

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most prisoners, such as lack of legal education and limited law library access, do not establish

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exceptional circumstances that would warrant a request for voluntary assistance of counsel. In

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this instance, the court does not find the issues to be so complex that plaintiff will be unable to

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articulate his claims. Moreover, plaintiff’s request for an expert to testify regarding his current

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condition does not constitute exceptional circumstances warranting appointment of counsel. The

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court will therefore decline to appoint counsel.

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The court notes that defendant also argues that plaintiff has the means to pay for an expert

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and no longer meets the requirements for in forma pauperis status (ECF No. 146 at 5, 7), which

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would weigh against appointment of counsel for the purpose of obtaining an expert witness.

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However, counsel does not provide the court with any specifics that would allow a finding that

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plaintiff can afford either counsel or an expert witness. The court declines to accept counsel’s

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conclusory assertion that plaintiff no longer qualifies to proceed in forma pauperis (id. at 7, ¶ 3)

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as evidence of plaintiff’s ability to pay for his litigation expenses.
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Because the remaining issues in this case are not so complex as to require the appointment

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of a neutral expert and plaintiff has not established that the purpose for which he seeks an expert

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witness would have any relevance to the issues in this case, plaintiff’s motion for appointment of

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an expert will be denied and the court will not appoint counsel for the purpose of retaining an

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expert witness.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for an expert witness

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(ECF No. 145) is denied.

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DATED: November 18, 2015

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