King v. Wang et al

Filing 62

ORDER signed by Magistrate Judge Deborah Barnes on 7/13/2018 DENYING plaintiff's 56 motion for appointment of counsel; and DENYING plaintiff's 57 request for a court-appointed expert. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID KING,

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Plaintiff,

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No. 2:14-cv-1817 KJM DB P

v.

ORDER

WANG,

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Defendant.

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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 against Defendant Licensed Vocational Nurse (“LVN”) Q. Wang on a single Eighth

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Amendment medical indifference claim. On May 30, 2018, Defendant filed a motion for

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summary judgment, which is supported by Defendant’s own declaration and that of her expert

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witness, Dr. L. Del Debbio. (See ECF No. 53.)
Plaintiff has now filed a motion for appointment of counsel and a motion for a court-

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appointed expert witness. For the reasons set forth below, both motions will be denied.

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A.

Motion for Appointment of Counsel

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Plaintiff moves for appointment of counsel on the grounds that he is unable to depose or

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take the depositions of Defendant and Dr. Del Debbio to rebut certain claims they make in their

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respective declarations.

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Plaintiff’s request will be denied for two reasons. First, the United States Supreme Court

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has ruled that district courts lack authority to require counsel to represent indigent prisoners in §

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1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain
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exceptional circumstances, the district court may request the voluntary assistance of counsel

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pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);

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Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances

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

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establish exceptional circumstances that would warrant a request for voluntary assistance of

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counsel. In the present case, the court does not find the required exceptional circumstances.
In addition to the foregoing, Plaintiff’s request will be denied for the simple reason that

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discovery in this case ended on February 2, 2018, and any request to depose the Defendant and/or

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her expert witness should have been filed by that date. (See ECF No. 49.) This decision stands

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even if the Court construes Plaintiff’s request as one brought pursuant to Federal Rule of Civil

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Procedure 56(d), which provides “a device for litigants to avoid summary judgment when they

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have not had sufficient time to develop affirmative evidence.” United States v. Kitsap Physicians

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Serv., 314 F.3d 995, 1000 (9th Cir. 2002). A party seeking additional discovery under Rule 56(d)

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must “explain what further discovery would reveal that is ‘essential to justify [its] opposition’ to

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the motion[ ] for summary judgment.” Program Eng’g, Inc. v. Triangle Publ’ns, Inc., 634 F.2d

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1188, 1194 (9th Cir. 1980) (first alteration in original). There must also be some showing that the

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moving party has diligently pursued discovery in the past. See California Union Ins. Co. v.

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American Diversified Sav. Bank, 914 F.2d 1271, 1278 (9th Cir. 1990). Here, Plaintiff has not

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made any showing that he sought to depose Defendant or her expert witness at any point during

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the period when discovery was open to him.
Accordingly, Plaintiff’s request for appointment of counsel will be denied.

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B.

Motion for Court-Appointed Expert
Plaintiff has also filed a request for a court-appointed expert to assist “the trier of fact to

understand the evidence or to determine a fact in issue.” (ECF No. 57.)
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Federal Rule of Evidence 706 provides “the court may order the parties to show cause

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why expert witnesses should not be appointed and may ask the parties to submit nominations. The

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court may appoint any expert that the parties agree on and any of its own choosing.” Fed. R. Evid.

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706(a). However, court-appointed experts typically are used in complex litigation where the

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record is not clearly developed by the parties, and generally serve the purpose of aiding the court

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in understanding the subject matter at hand. See Walker v. Am. Home Shield Long Term

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Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) (appointing a physician expert witness

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where medical testimony on record was “not particularly clear”); Woodroffe v. Oregon, 2014 WL

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1383400, at *5 (D. Or. April 8, 2014) (“This Rule permits a court to appoint a neutral expert to

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assist the court to understand complex, technical, or esoteric subject matter.”); In re Joint E. & S.

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Districts Asbestos Litig., 830 F. Supp. 686, 693 (E.D. N.Y. 1993) (noting that court appointment

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of experts is appropriate only in “rare circumstances” and should be reserved for “exceptional

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cases” in which the ordinary adversarial process does not suffice, such as complex mass tort

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problems.) Courts do not invoke Rule 706 simply to “appoint an expert on behalf of an indigent

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civil party.” Woodroffe, 2014 WL 1383400, at *5; see also Gorton v. Todd, 793 F. Supp. 2d

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1171, 1178 n.6 (E.D. Cal. 2011) (where “all parties agree[d]” Rule 706 did not permit the

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appointment of a neutral expert witness solely for an indigent prisoner’s “own benefit” in aiming

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to prove deliberate indifference.)

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Here, insofar as Plaintiff seeks appointment of an expert witness for his own benefit, the

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Court has no authority to grant him such relief. Rule 706(a) of the Federal Rules of Evidence

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permits the court to appoint only neutral expert witnesses. Id. Moreover, “28 U.S.C. § 1915 does

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not authorize the court to appoint an expert for plaintiff’s benefit to be paid by the court.” Gorton,

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793 F. Supp. 2d at 1184 n.11.

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Next, Plaintiff fails to demonstrate that this action is so complex that it requires the

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appointment of an expert witness to assist the trier of fact. Plaintiff does not explain how his

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deliberate indifference claim is factually or legally complex. Plaintiff's claims of deliberate

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indifference to serious medical need are not so complex that the court requires a neutral expert at

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the summary judgment stage. See, e.g., Noble v. Adams, 2009 WL 3028242, at *1 (E.D. Cal.
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Sept. 16, 2009) (denying plaintiff's request to appoint medical expert witness in section 1983

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action because “the issues are not so complex as to require the testimony of an expert”); Lopez v.

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Scribner, 2008 WL 551177, at *1 (E.D. Cal. Feb. 27, 2008) (denying plaintiff's request to appoint

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medical expert witness in § 1983 action because “the legal issues involved in this action are not

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particularly complex.”); Hooker v. Adams, 2007 WL 4239570, at *1 (E.D. Cal. Dec. 3, 2007)

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(plaintiff's motion for the appointment of an expert witness denied as “the legal issues involved in

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this action are not particularly complex.”). Rather, this case involves a relatively straightforward

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Eighth Amendment claim that will turn on the nature of Defendant’s response to Plaintiff’s

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medical need.
Plaintiff’s motion for a neutral expert under Rule 706 will therefore also be denied.

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III.

Conclusion

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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2. Plaintiff’s request for a court-appointed expert (ECF No. 57) is denied.

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Plaintiff’s motion for the appointment of counsel (ECF No. 56) is denied; and

Dated: July 13, 2018

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/DLB7;
DB/Inbox/Routine/king1817.31+31c

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