Giraldes, Jr. v. Nicolai, et al.

Filing 53

ORDER signed by Magistrate Judge Allison Claire on 08/18/17 denying 52 motion for court order as to appointed expert. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LARRY GIRALDES, JR.,

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No. 2:16-cv-0497 KJM AC P

Plaintiff,
v.

ORDER

ALICE NICOLAI, et al.,
Defendants.

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Larry Giraldes, Jr. (“plaintiff”) is a state prisoner proceeding pro se with this action

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pursuant to 42 U.S.C. § 1983. He has filed a motion seeking to have this court appoint an expert

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in pain management. ECF No. 52. Plaintiff claims that defendants have restricted his pain

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medication in retaliation for “signing [s]ettlement papers behind their backs” and expert

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appointment is necessary to show that his medical condition is serious and is “akin to having

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cancer.” Id. at 2-3.

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Federal Rule of Evidence 706 does not permit the court to appoint and compensate an

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expert witness to act as an advocate for plaintiff. See Gamez v. Gonzalez, 2010 U.S. Dist. LEXIS

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61369, 2010 WL 2228427, *1 (E.D. Cal. June 2, 2010) (holding that Rule 706 “does not

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contemplate the appointment of, and compensation for, an expert to aid one of the parties.”); see

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also Gorrell v. Sneath, 2013 U.S. Dist. LEXIS 93960, 2013 WL 3357646, * 1 (E.D. Cal. Jul. 3,

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2013) (holding that “the purpose of a court-appointed expert is to assist the trier of fact, not to

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serve as an advocate for a particular party.”). The fact that the party requesting appointment of an
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expert is proceeding in forma pauperis does not warrant an exception to this rule. See Dixon v.

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Ylst, 990 F.2d 478, 480 (9th Cir. 1993) (holding that “28 U.S.C. § 1915, the in forma pauperis

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statute, does not waive payment of fees or expenses for witnesses.”). Additionally, the court

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notes that the claims underlying this action are First Amendment retaliation claims, not Eighth

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Amendment deliberate indifference claims. ECF No. 15. With respect to these underlying

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claims, the court concludes that appointment of a medical expert is unnecessary – at least at this

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time. In his motion, plaintiff claims that his pain medications are being “completely stopped”

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(ECF No. 52 at 1); the court is confident that it can interpret any medical records indicating a

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complete discontinuation of pain care without the aid of an expert.

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As a final note, the court is concerned that plaintiff, having been denied his request to

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reinstate the Eighth Amendment claims that were screened out (ECF Nos. 42-43), is attempting to

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shift the focus of this litigation to the question of whether he is currently being provided adequate

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medical care. The court will adjudicate the pending motion for preliminary injunctive relief

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insofar as the medical shortcomings alleged therein purportedly arise out of some retaliatory

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purpose on the part of defendants. ECF No. 41. Any broader claims about the constitutional

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adequacy of plaintiff’s current medical care must be brought in a separate suit.

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IT IS THEREFORE ORDERED that plaintiff’s motion for court order as to appointed

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expert (ECF No. 52) is DENIED.

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DATED: August 18, 2017

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