Johnson v. Gains et al

Filing 126

ORDER denying plaintiff's 100 Motion to Appoint Expert Witness. Signed by Magistrate Judge Louisa S Porter on 10/24/11. (All non-registered users served via U.S. Mail Service)(kaj)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 ANTHONY WAYNE JOHNSON, JR., 11 09cv1312-LAB (POR) Plaintiff, 12 13 Civil No. v. ORDER DENYING PLAINTIFF’S MOTION TO APPOINT EXPERT WITNESS M. GAINS et al., 14 Defendants. [ECF No. 100] 15 16 A. Introduction On February 10, 2010, Plaintiff Anthony Wayne Johnson, Jr., a state prisoner proceeding pro 17 18 se and in forma pauperis, filed a third amended complaint pursuant to 42 U.S.C. § 1983 against ten 19 California Department of Corrections and Rehabilitation officials. On September 2, 2011, Plaintiff 20 filed a Motion to Appoint an Expert Witness. (ECF No. 100.) Defendants filed an Opposition on 21 September 22, 2011. (ECF No. 111.) Plaintiff filed a Response to Defendants’ Opposition on 22 October 3, 2011. (ECF No. 116.) On October 5, 2011, the Court held a Discovery Conference. Appearing were Plaintiff 23 24 Anthony Johnson and Terrence Sheehy, Esq., counsel for Defendants. Based on the discussions 25 with the parties and for the reasons set forth below, Plaintiff’s motion is hereby DENIED. 26 B. Discussion 27 In the instant motion, Plaintiff requests the Court appoint and pay for forensic psychologist 28 Dr. Melvin Macomber to evaluate Defendants “in order to prove that they each suffer from severe -1- 09cv1312 1 psychological and mental disorders and that they each had malicious and sadistic intentions to harm 2 Plaintiff on December 23, 2007 and July 18, 2008.” (ECF No. 100.) Plaintiff intends to call Dr. 3 Macomber to testify as to “defendants’ state of mind and their propensities.” (Id.) He anticipates 4 the cost of Dr. Macomber’s services “will not exceed $28,600.” (Id.) 5 The district courts have full discretion to appoint an expert witness. FED. R. EVID. 706(a); 6 McKinney v. Anderson, 924 F.2d 1500, 1510-11 (9th Cir.1991), overruled on other grounds by 7 Helling v. McKinney, 502 U.S. 903 (1991). In exercising its discretion, the Court must consider 8 whether complex scientific evidence or issues exist which warrant the appointment of an expert 9 witness. Id. Rule 706 also “allows the court to assess the cost of the expert’s compensation as it 10 deems appropriate.” Id. However, the in forma pauperis statute, 28 U.S.C. § 1915, does not waive 11 the requirement of the payment of fees or expenses for witnesses in a § 1983 prisoner civil rights 12 action. Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir.1993). 13 In addition, the Court may “order a party whose mental or physical condition . . . is in 14 controversy to submit to a physical or mental examination by a suitably licensed or certified 15 examiner.” FED. R. CIV. P. 35(a)(1). Such an order “may be made only on motion for good cause.” 16 FED. R. CIV. P. 35(a)(2)(A). A party seeking to compel a mental or physical examination of an 17 adverse party must demonstrate that (1) the adverse party’s mental or physical condition is in 18 controversy and (2) there is good cause for the examination. Schlagenhauf v. Holder, 379 U.S. 104, 19 118 (1964). The Supreme Court has further explained that the “in controversy” and “good cause” 20 requirements of Rule 35 “are not met by mere conclusory allegations of the pleadings– nor by mere 21 relevance to the case– but require an affirmative showing by the movant that each condition as to 22 which the examination is sought is really and genuinely in controversy and that good cause exists for 23 ordering each particular examination.” Id. 24 Here, Plaintiff fails to establish good cause to compel mental examinations of Defendants. 25 Defendants’ mental conditions in general are not at issue in this case. Defendants’ intent at the time 26 of the alleged excessive force is at issue; however, a court-appointed expert witness is not necessary 27 to prove Defendants’ intent. Defendants maintain, and the Court agrees, that the parties are “able to 28 establish each other’s mental state at the time of the incident through each parties’ direct testimony, -2- 09cv1312 1 the testimony of percipient witnesses, and through other evidence such as discovery responses and 2 documentary evidence.” (ECF No. 111 at 3.) Further, the in forma pauperis statute does not waive 3 Plaintiff’s responsibility to pay for an expert witness. Plaintiff requests this Court pay the fees of his 4 expert. The relevancy of such expert’s testimony is outweighed by the costs. Thus, this Court 5 cannot and will not order such payments. Based thereon, Plaintiff’s Motion to Appoint an Expert 6 Witness is hereby DENIED. 7 8 IT IS SO ORDERED. DATED: October 24, 2011 9 10 LOUISA S PORTER United States Magistrate Judge 11 12 cc The Honorable Larry A. Burns All parties 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- 09cv1312

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