Moody v. Unknown

Filing 74

ORDER denying 71 plaintiff's request for appointment of a medical expert witness; the Court also denies plaintiff's request for a list of experts, as the Court does not maintain such lists to aid parties in the litigation of their cases; Signed by Magistrate Judge Bernard G. Skomal on 10/4/10. (All non-registered users served via U.S. Mail Service)(kaj)

-BGS Moody v. Finander

Doc. 74

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Floyd Steveson Moody ("Plaintiff"), an incarcerated individual, brought this pro se civil 18 rights suit alleging that prison officials, as well as medical personnel who treated him at 19 Alvarado Hospital, violated his Eight Amendment rights to adequate medical care. (Amend. 20 Compl. Doc. No. 4.) On September 7, 2010, Plaintiff, who is proceeding pro se and in forma 21 pauperis in this action, filed a motion for appointment of an expert to present documents of 22 evidence. (Doc. No. 71.) Plaintiff requests that the Court provide him with an expert, or a list 23 of experts, to assist him in his presentation of evidence. (Id. at 3-4.) 24 In his request, Plaintiff asserts that "expert testimony to the factual content of the 25 records the Plaintiff intend[s] to produce as evidence supporting his claims is necessary." (Id. 26 at 2.) Plaintiff states that he has "attempted several contacts, but is only aware of contacts in 27 the state of Texas," and that all of his "attempts to secure [an] expert witness, ha[ve] been to 28 no avail." (Id. at 3.) Plaintiff requests that the Court appoint an expert, or list of experts, to
-109cv892-LAB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
FLOYD STEVESON MOODY, vs. Plaintiff, CASE NO. 09-CV-892-LAB (BGS) ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF EXPERT

PAULETTE FINANDER, Chief Medical Officer, et al., Defendants.

Dockets.Justia.com

1 present medical evidence. (Id. at 1.) Plaintiff seeks a Court-appointed expert based on his in 2 forma pauperis status. (Id. at 1.) 3 An expert witness may testify to help the trier of fact determine the evidence or a fact

4 at issue. Fed.R.Evid. 702. A court has full discretion to appoint an expert witness either by its 5 own motion or by a party's motion. Fed.R.Evid. 706(a); McKinney v. Anderson, 924 F.2d 6 1500, 1510-11 (9th Cir.1991), overruled on other grounds by Helling v. McKinney, 502 U.S. 7 903 (1991). Appointment of an expert witness may generally be appropriate when "scientific, 8 technical, or other specialized knowledge will assist the trier of fact to understand the evidence 9 or decide a fact in issue...." Levi v. Dir. of Corr., 2006 WL 845733 *1 (E.D.Cal.2006) (citation 10 omitted). 11 Although Plaintiff is proceeding in forma pauperis, the court is not required to pay for

12 such an appointed expert. The in forma pauperis (IFP) statute, 28 U.S.C. § 1915, does not 13 waive the requirement of the payment of fees or expenses for witnesses in a § 1983 prisoner 14 civil rights action. Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir.1993). "Reasonably construed, 15 [Rule 706] does not contemplate the appointment of, and compensation for, an expert to aid 16 one of the parties." Trimble v. City of Phoenix Police Dept., 2006 WL 778697 *2 17 (D.Ariz.2006) (citation omitted). Rather, Rule 706(a) permits the appointment of an expert to 18 aid the court. See Chan v. County of Sacramento, 2010 WL 3700193 *1 (E.D. Cal. 2010). 19 At present, the Court is not in need of expert assistance. To prevail on his Eighth

20 Amendment claim for deliberate indifference, Plaintiff must show that Defendants acted with 21 deliberate indifference to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 22 (1983). Deliberate indifference has a subjective component because it requires the court to 23 "consider the seriousness of the prisoner's medical need and the nature of the defendant's 24 response to that need." Levi, 2006 WL 845733, 2006 U.S. Dist. LEXIS at 3 (citation omitted). 25 In the context of such a claim, "the question of whether the prison officials displayed deliberate 26 indifference to [Plaintiff's] serious medical needs [does] not demand that the jury consider 27 probing, complex questions concerning medical diagnosis and judgment." Id. Courts have 28 declined to appoint an expert under such circumstances. Id. Therefore, Plaintiff's request for
-209cv892-LAB

1 appointment of a medical expert witness is DENIED. The Court also denies Plaintiff's request 2 for a list of experts, as the Court does not maintain such lists to aid parties in the litigation of 3 their cases. 4 IT IS SO ORDERED.

5 DATED: October 4, 2010 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
-309cv892-LAB

__________________________________ BERNARD G. SKOMAL United States Magistrate Judge