Gomez v. Acharya et al

Filing 48

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/15/2019 DENYING 46 Motion for Extension of Time and DENYING 47 Motion for Expert Witness. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EDWARD GOMEZ,

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No. 2:17-cv-2407 MCE CKD P

Plaintiff,
v.

ORDER

ACHARYA, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C.

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§ 1983, has filed another motion for an extension of time. (ECF No. 46.) His previous motion

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was denied because he did not identify which deadline he wanted to extend or how long of an

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extension he was seeking. (ECF No. 45.) Though the instant motion states that plaintiff is

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seeking a twenty-eight-day extension, plaintiff has once again failed to identify what deadline he

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wants extended. The motion will therefore be denied. If plaintiff files another motion for

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extension, he needs to tell the court what he wants more time to do.

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Plaintiff has also filed a motion requesting an expert witness to verify his diagnosis. (ECF

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No. 47.) Federal Rule of Evidence 706 authorizes the appointment of a neutral expert witness,

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

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

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Plan, 180 F.3d 1065, 1071 (9th Cir. 1999), and may be appropriate when “scientific, technical, or
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other specialized knowledge will assist the trier-of-fact to understand the evidence or decide a

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fact in 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).
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. However, even if plaintiff is truly

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

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that the testimony of a neutral expert would be warranted and the request is denied. To the extent

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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:

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1. Plaintiff’s motion for an extension of time (ECF No. 46) is denied.

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2. Plaintiff’s motion for an expert witness (ECF No. 47) is denied.

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Dated: November 15, 2019

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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13:gome2407.36

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