Olic v. Beard et al

Filing 38

ORDER signed by Magistrate Judge Allison Claire on 05/22/19 DENYING 37 Motion to 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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MILORAD OLIC,

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No. 2:16-cv-0720 JAM AC P
Plaintiff,

v.

ORDER

JEFFREY BEARD, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42
U.S.C. § 1983 and has requested appointment of an expert witness. ECF No. 37.
Federal Rule of Evidence 706 authorizes the appointment of a neutral expert witness, with

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expenses shared by the parties. The appointment of an independent expert witness pursuant to

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Rule 706 is within the court’s discretion, Walker v. Am. Home Shield Long Term Disability Plan,

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180 F.3d 1065, 1071 (9th Cir. 1999), and 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). However, the statute

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authorizing plaintiff’s in forma pauperis status does not authorize the expenditure of public funds

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for expert witnesses. See 28 U.S.C. § 1915; Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir.

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1989) (per curiam) (expenditure of public funds on behalf of indigent litigant is proper only when

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authorized by Congress); Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 1987) (no provision
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to pay fees for expert witnesses). The federal courts have uniformly held that an indigent prisoner

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litigant must bear his own costs of litigation, including witnesses. Tedder, 890 F.2d at 211 (in

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forma pauperis statute, 28 U.S.C. § 1915, does not authorize waiver of fees or expenses for an

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indigent’s witnesses).

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In this case, it appears that plaintiff is seeking to have the court appoint an expert witness

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to advocate on his behalf, which is not authorized by Rule 706. Even if plaintiff is truly seeking a

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neutral expert, the court does not find that the issues in this case are complicated such that the

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testimony of a neutral expert would be warranted, and the request is therefore denied. To the

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extent the expenses of an expert retained on behalf of a prisoner litigant may be recovered if

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preauthorized and arranged by counsel appointed by this court’s Pro Bono Panel, plaintiff has not

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demonstrated extraordinary circumstances to warrant appointment of counsel. The court will

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therefore decline to appoint counsel for the purpose of obtaining an expert witness.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for appointment of an

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expert witness (ECF No. 37) is denied.

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DATED: May 22, 2019

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