Lopez v. Krieg, et al.

Filing 93

ORDER signed by Magistrate Judge Allison Claire on 3/23/2016 DENYING plaintiff's 92 motion for appointment of an expert witness. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD LOPEZ,

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No. 2:13-cv-1176 KJM AC P

Plaintiff,

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v.

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J. KRIEG, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights

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action challenging the denial of plaintiff’s request for partial dentures. Discovery closed in this

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action on January 15, 2015; the deadline for filing dispositive motions is April 15, 2016. See

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ECF No. 86. Presently pending is plaintiff’s motion for appointment of a neutral expert witness.

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See ECF No. 92. In support of his motion, plaintiff asserts that his claims rest on complex

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medical evidence, that he lacks medical and legal expertise, and that the conduct challenged in

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this action occurred at the Sierra Conservation Center in Jamestown while plaintiff is now

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inconveniently incarcerated at the Correctional Training Facility in Soledad.

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The district court has discretion to appoint a neutral expert witness pursuant to Rule

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706(a) of the Federal Rules of Evidence. See also Walker v. American Home Shield Long Term

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Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) (“district court . . . has the discretion to

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appoint an expert sua sponte under Federal Rule of Evidence 706(a)”). In addition, pursuant to
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Rule 702, “If scientific, technical, or other specialized knowledge will assist the trier of fact to

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understand the evidence or to determine a fact in issue, a witness qualified as an expert by

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knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion

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or otherwise . . . .” Fed. R. Evid. 702. Compensation for such experts is determined by the court

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and payable by the parties “in the proportion and at the time that the court directs.” Fed. R. Evid.

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706(c)(2).

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However, the in forma pauperis statute, 28 U.S.C. § 1915, “does not waive payment of

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fees or expenses for witnesses.” Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993). More

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specifically, “[t]he plain language of section 1915 does not provide for the appointment of expert

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witnesses to aid an indigent litigant.” Pedraza v. Jones, 71 F.3d 194, 196 (5th Cir. 1995); accord,

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Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 1987), cert. denied, 485 U.S. 991 (1988)

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(district court has no authority under Section 1915 to pay or waive expert witness fees in civil

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damage suits); see also Tedder v. Odel, 890 F.2d 210, 211 (9th Cir. 1989) (“Although the plain

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language of section 1915 provides for service of process for an indigent’s witnesses, it does not

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waive payment of fees or expenses for those witnesses.”).

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In the instant case, plaintiff requests appointment and payment of an expert witness to

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serve, essentially, as his advocate in this action. Because there is no authority for granting this

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request, the motion will be denied. However, this decision will not impact the court’s later

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consideration whether to appoint a neutral expert witness if so indicated.

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Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that plaintiff’s

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motion for appointment of an expert witness, ECF No. 92, is denied.

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DATED: March 23, 2016.

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