Brandon v. Williams, et al.

Filing 134

ORDER signed by Magistrate Judge Dennis M. Cota on 9/26/2022 DENYING 90 Request for the Appointment of an Expert Witness. (Huang, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KAIAN BRANDON,

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No. 2:14-cv-02883 TLN DMC P

Plaintiff,
v.

ORDER

L. WILLIAMS, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis,

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with a civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s claim

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alleging that defendants were deliberately indifferent to a known safety risk in violation of the

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Eighth Amendment when they failed to heed Plaintiff’s warnings that his cellmate was a danger

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to him and when they failed to intervene when the cellmate assaulted him.

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Pursuant to court order, the parties have submitted pretrial statements. In his

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pretrial statement, Plaintiff seeks the appointment of “an expert in the field of corrections, to

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provide testimony about their [sic] being a code of silence[,] about the history of a code of silence

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that has existed and is presently permeated among prison guards, which becomes more prevalent

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as the correctional staffs experience progresses.” ECF No. 90 at 20. Plaintiff argues this

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appointment is necessary because he argues that Defendants Mitchell and Hendricks failed to

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intervene when Plaintiff’s cellmate assaulted him allegedly in retaliation for a CDCR 22 form that

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was filed against Defendant Busig earlier that day by another inmate.
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The Court has the discretion to appoint an expert pursuant to Rule 706(a) of the

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Federal Rules of Evidence. In relevant part, Rule 706 states that “[o]n a party's motion or on its

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own, the court may order the parties to show cause why expert witnesses should not be appointed

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...” Fed. R. Evid. 706(a); Walker v. American Home Shield Long Term Disability Plan, 180 F.3d

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1065, 1071 (9th Cir. 1999). Pursuant to Rule 702, “a witness who is qualified as an expert by

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

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otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the

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trier of fact to understand the evidence or to determine a fact in issue ...” Fed. R. Evid. 702. The

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appointment of such an expert witness may be appropriate when “scientific, technical, or other

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

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issue.” Ledford v. Sullivan, 105 F.3d 354, 358–59 (7th Cir. 1997).

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While the court has the discretion to appoint an expert and to apportion costs,

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including the appointment of costs to one side, Fed. R. Evid. 706; Ford ex rel. Ford v. Long

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Beach Unified School Dist., 291 F.3d 1086, 1090 (9th Cir. 2002); Walker, 180 F.3d at 1071,

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where the cost would likely be apportioned to the government, the court should exercise caution.

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Moreover, Rule 706 is not a means to avoid the in forma pauperis statute and its prohibition

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against using public funds to pay for the expenses of witnesses, Manriquez v. Huchins, 2012 WL

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5880431, *12 (E.D. Cal. 2012), nor does Rule 706 contemplate court appointment and

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compensation of an expert witness as an advocate for Plaintiff, Faletogo v. Moya, 2013 WL

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524037, *2 (S.D. Cal. 2013). The court is cognizant of the challenges an IFP litigant such as

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Plaintiff faces in retaining an expert witness. Still, the IFP statute does not grant the court the

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authority to appoint expert witnesses on behalf of a party. 28 U.S.C. § 1915; see also Pedraza v.

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Jones, 71 F.3d 194, 196 (5th Cir. 1995).

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Plaintiff claims that Defendants Mitchell and Hendricks witnessed the altercation

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between him and his cellmate and yet failed to intervene. The Court considers whether an expert

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witness would assist it in understanding the evidence or to determining a fact in issue. Fed. R.

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Evid. 702. Here, Plaintiff’s allegations are no more complex than those found in a majority of

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Eighth Amendment failure-to-protect cases pending before this Court. An expert witness is not
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needed to determine whether Defendants failed to intervene when Plaintiff’s cellmate was

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assaulting him. Notably, Plaintiff is not asserting a First Amendment retaliation claim.

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Therefore, Plaintiff’s request for the appointment of an expert witness shall be denied.

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Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s request for the

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appointment of an expert witness (ECF No. 90) is DENIED.

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Dated: September 26, 2022

____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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