Witkin v. Lotersztain et al

Filing 27

ORDER signed by Magistrate Judge Kendall J. Newman on 03/23/16 denying 24 Motion to modify the discovery and scheduling order and denying 26 Motion to Appoint an expert witness. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL WITKIN,

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Plaintiff,

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No. 2:15-cv-0638 MCE KJN P

v.

ORDER

MARIANA LOTERSZTAIN, et al.,

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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. On March 3, 2016, plaintiff filed a motion for an order requiring defendants to

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resubmit discovery and to modify the scheduling order. On March 15, 2016, plaintiff filed a

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motion for an impartial expert witness. As discussed below, plaintiff’s motions are denied.

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I. Request to Modify Scheduling Order

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Plaintiff alleges that on February 17, 2016, plaintiff mailed out most of the pertinent

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discovery materials in an attempt to obtain counsel. Plaintiff alleges that his materials were

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“tampered with and desecrated by prison staff,” and that upon receiving the materials back, a

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number of the “most critical pieces of discovery were missing.” (ECF No. 24 at 1.) Plaintiff

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claims that without such documents he would be unable to prosecute this case, and seeks

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modification of the scheduling order to address this matter.

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In support of his request, plaintiff provides his own declaration, as well as declarations

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from David Witkin, Crystal Strong, Julie Reece, and Jason Anderson, who are employed at the

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law firm of the Ellis Group, LLP. Witness David Witkin avers that the package, which appeared

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to have been opened and resealed, contained documents that had been soaked in a moist

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substance and reeked of urine. (ECF No. 24 at 7.) Strong, Reece, and Anderson averred that the

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documents appeared to be discolored, as if they were wet, or had been wet, and smelled of urine.

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Defendants oppose plaintiff’s request. Defendants aver that upon receipt of plaintiff’s

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motion, despite their vehement opposition thereto, they prepared copies of, and re-sent, all of

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defendants’ responses to plaintiff’s discovery requests. Defendants contend that plaintiff fails to

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show good cause or why discovery needs to be re-opened two months after the discovery deadline

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expired. Defendants explained how prison legal mail is handled, confirming that correctional

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officers do not handle the mail in the mail room, and that if a package smells of urine or any other

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odd smell, the mailroom staff notifies the supervisor and the mail is not sent out. (ECF No. 25 at

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3.) Nothing unusual was noted in the mail log regarding plaintiff’s legal mailing. (Id.)

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Further, counsel for defendants spoke with Crystal Strong, an administrative assistant to

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Mark Ellis, who stated that David Witkin, likely plaintiff’s brother, works in the mailroom at Ellis

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Law Group, LLP, and that David Witkin called Strong and the other declarants into the mailroom

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to look at the documents. Counsel also spoke to Mark Ellis, the firm’s management partner, who

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informed counsel that “the firm has never represented Mr. Witkin, Mr. Ellis has never been

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approached to represent Mr. Witkin, and the firm has no intention of representing Mr. Witkin.”

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(ECF No. 25 at 3.) Defendants argue that plaintiff’s claims are “rather suspect given that he was

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not actually seeking representation from Ellis Law Group, has sent his brother documents through

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the prison confidential mail system under the guise of Ellis Law Group being the intended

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recipient, has abused the confidential/legal mailing system to send correspondence to his non-

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attorney brother, and that people other than prison staff had access to the documents.” (ECF No.

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25 at 4.)
Plaintiff did not file a reply to defendants’ opposition.

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“The district court is given broad discretion in supervising the pretrial phase of litigation.”

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Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (citation and internal

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quotation marks omitted). Rule 16(b) provides that “[a] schedule may be modified only for good

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cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “The schedule may be modified

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‘if it cannot reasonably be met despite the diligence of the party seeking the extension.’”

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Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting

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Johnson, 975 F.2d at 607).

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Here, plaintiff has utterly failed to demonstrate good cause for the requested continuance.
Defendants, in good faith, provided plaintiff with copies of previously provided discovery

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responses. Plaintiff’s motion to extend the discovery deadline is denied.

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II. Motion for Medical Expert

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On March 15, 2016, plaintiff filed a motion for appointment of an impartial medical

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expert witness, pursuant to Rule 706 of the Federal Rules of Evidence, claiming that “this case

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turns on whether the facts alleged amount to a violation of the appropriate standard of care,” and

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that “defendants have admitted all relevant facts.” (ECF No. 26 at 2.) Plaintiff contends that the

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fact that defendants indicated on February 24, 2016, that they intend to present expert witness

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testimony in support of their motion for summary judgment demonstrates that plaintiff’s case is

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“potentially meritorious,” demonstrating that Rule 706’s policy goal of accurate factfinding

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would be served by the appointment of an impartial expert.

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First, plaintiff is mistaken that the issue turns on “standard of care,” which courts address

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in evaluating negligence claims. In addressing Eighth Amendment medical claims, courts focus

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on whether the medical professionals were deliberately indifferent. “[T]o maintain an Eighth

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Amendment claim based on prison medical treatment, an inmate must show ‘deliberate

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indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)

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(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires plaintiff to show (1) “a

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‘serious medical need’ by demonstrating that ‘failure to treat a prisoner’s condition could result in

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further significant injury or the unnecessary and wanton infliction of pain,’” and (2) “the

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defendant’s response to the need was deliberately indifferent.” Id. (quoting McGuckin v. Smith,
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974 F.2d 1050, 1059-60 (9th Cir. 1992) (citation and internal quotations marks omitted),

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overruled on other grounds WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en

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banc)).
Deliberate indifference is established only where the defendant subjectively “‘knows of

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and disregards an excessive risk to inmate health and safety.’” Toguchi v. Chung, 391 F.3d 1051,

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1057 (9th Cir. 2004) (emphasis added) (quoting Gibson v. County of Washoe, 290 F.3d 1175,

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1187 (9th Cir. 2002)). Deliberate indifference can be established “by showing (a) a purposeful

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act or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the

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indifference.” Jett, 439 F.3d at 1096 (citation omitted).

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Thus, plaintiff must adduce facts demonstrating that defendants acted with deliberate
indifference, rather than simply demonstrating the “standard of care.”

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Second, the court finds that plaintiff has failed to demonstrate that his case is of such

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complexity that the judicial appointment of experts is necessary at this stage of the litigation. See

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McKinney v. Anderson, 924 F.2d 1500 (9th Cir.) vacated on other grounds sub nom., Helling v.

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McKinney, 502 U.S. 903 (1991) (district court may exercise its discretion to appoint an expert

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under Rule 706). Rule 706 does not authorize the Court to finance for the plaintiff the

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expenditure of expert witness fees. Federal Courts are not authorized or required to subsidize a

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civil action for a plaintiff proceeding in forma pauperis. See 28 U.S.C. § 1915; Tedder v. Odel,

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890 F.2d 210, 211 (9th Cir. 1989); United States v. MacCollom, 426 U.S. 317, 321 (1976).

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Extraordinary circumstances have not been shown to require defendants to bear such an expense

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or to authorize the use of non-appropriated funds at this time. See Geraldes v. Prebula, No. CIV-

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S-01-211 LKK/EFB, 2012 WL 1355739 (E.D. CA April 18, 2012).

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III. Conclusion

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to modify the discovery and scheduling order (ECF No. 24) is

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denied; and

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2. Plaintiff’s motion for the appointment of an expert witness (ECF No. 26) is denied

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without prejudice.

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Dated: March 23, 2016

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/witk0638.16b2

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