Thornberry v. Kernan et al

Filing 33

ORDER signed by Magistrate Judge Craig M. Kellison on 08/22/18 ORDERING Plaintiffs motions for appointment of experts 26 , 27 aredenied. Plaintiffs motions for leave to take depositions by written questions 31 , 32 are denied as unnecessary. The Clerk of the Court is directed to forward to plaintiff ten blank subpoena forms. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL LEE THORNBERRY,

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Plaintiff,
vs.

ORDER

J. BAL, et al.,
Defendants.

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No. 2:17-CV-0953-TLN-CMK-P

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court are the following: (1) plaintiff’s motions for

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appointment of expert witnesses (Docs. 26 and 27); (2) plaintiff’s request for issuance of

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subpoena forms (Doc. 29); and (3) plaintiff’s motions for leave to take depositions by written

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questions (Docs. 31 and 32).

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Plaintiff seeks a court order appointing an “independent neurologist or other

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neuroscientist” pursuant to Federal Rule of Civil Procedure 35. Rule 35, however, does not

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provide for court appointment of experts. Instead, that rule allows the court to order a party to

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submit to a physical or mental examination. Because plaintiff has not cited any authority for the

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court to appoint experts, plaintiff’s motions will be denied.
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Plaintiff also seeks a court order permitting him to take written depositions

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pursuant to Federal Rule of Civil Procedure 31(a)(2). Leave of court under this rule is required

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where the proposed deponent is in custody. See Fed. R. Civ. P. 31(a)(2)(B). In this case, while

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plaintiff is in custody, the proposed deponents are not. Therefore, leave of court is not required

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and plaintiff’s motions will be denied as unnecessary.

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Finally, plaintiff requests that the Clerk of the Court issue blank subpoena forms.
Good cause appearing therefore, this request will be granted.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motions for appointment of experts (Docs. 26 and 27) are

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Plaintiff’s motions for leave to take depositions by written questions

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denied;

(Docs. 31 and 32) are denied as unnecessary; and

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3.

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The Clerk of the Court is directed to forward to plaintiff ten (10) blank

subpoena forms.

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DATED: August 22, 2018
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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