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