Young v. Smalls et al

Filing 134

ORDER (1) finding subpoenas to be defective and unenforceable; (2) Denying Plaintiff's Motion to quash as moot; and (3) Denying Plaintiff's Motion for appointment of counsel and for expert witnesses re 122 , 126 , 131 . Signed by Magistrate Judge Jan M. Adler on 10/27/11. (All non-registered users served via U.S. Mail Service)(lao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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HOWARD YOUNG, CDCR #F-44590,
Plaintiff,

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v.

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LARRY SMALLS, et al.,
Defendants.

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Case No. 09-CV-2545-DMS (JMA)
ORDER (1) FINDING SUBPOENAS TO
BE DEFECTIVE AND
UNENFORCEABLE; (2) DENYING
PLAINTIFF’S MOTION TO QUASH AS
MOOT; AND (3) DENYING
PLAINTIFF’S MOTIONS FOR
APPOINTMENT OF COUNSEL AND
FOR EXPERT WITNESSES
[Doc. Nos. 122, 126, 131]

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Presently before the Court are the following motions filed by Plaintiff Howard

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Young: a motion to quash subpoena (Doc. No. 122), a motion for appointment of

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counsel (Doc. No. 126), and a motion for expert witnesses (Doc. No. 131).

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A.

Motion to Quash Subpoena

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On September 21, 2011 nunc pro tunc September 12, 2011, Plaintiff filed a

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motion for quash in relation to two subpoenas issued out of this Court by counsel for

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Defendants to the custodian of records for Kern Valley State Prison, located in Delano,

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California, where Plaintiff is currently incarcerated. See Pl.’s Mot. [Doc. No. 122]; Opp’n

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[Doc. No. 127], Exs. A & B. The subpoena commands the custodian of records to

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produce and permit inspection of certain of Plaintiff’s medical records, as well as certain

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documents from Plaintiff’s central inmate file. Plaintiff seeks an order quashing or

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modifying the subpoenas.
Rule 45 of the Federal Rules of Civil Procedure requires a subpoena for

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production or inspection of documents to be issued “from the court for the district where

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the production or inspection is to be made.” Fed. R. Civ. P. 45(a)(2)(C). Pursuant to

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Rule 45(a)(2)(C), and based on the information presently before the Court, the

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subpoenas should have issued from the United States District Court, Eastern District of

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California. Accordingly, the Court finds that the subpoenas issued by Defendants out of

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this Court to Kern Valley State Prison are DEFECTIVE and UNENFORCEABLE, as

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they were not issued from the court for the district where the production is to be made.

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Based on the foregoing, Plaintiff’s motion to quash is DENIED as moot.

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B.

Motion for Appointment of Counsel

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On September 27, 2011 nunc pro tunc September 21, 2011, Plaintiff filed an

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motion for appointment of counsel. Doc. No. 126.1 The Court denied a previous motion

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for appointment of counsel on November 1, 2010. See Doc. No. 39. Plaintiff has not

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demonstrated any change in circumstance that would warrant the appointment of

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counsel under the standards set forth in the Court’s November 1, 2010 Order. See id.

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Accordingly, Plaintiff’s motion for appointment of counsel is again DENIED without

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prejudice.

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C.

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On October 17, 2011 nunc pro tunc October 6, 2011, Plaintiff filed a motion for

Motion for Expert Witnesses

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expert witnesses, in which he requests that the Court appoint a medical doctor, a

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psychiatrist, and a “Hebrew-Israelite priest/rabbi” to serve as experts on Plaintiff’s

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behalf. Doc. No. 131. Rule 706 of the Federal Rules of Evidence authorizes a court to

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appoint an expert witness on its own motion or on the motion of any party. Fed. R.

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Evid. 706(a). The appointment of such a witness is within a court's discretion. Walker

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v. American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir.

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Plaintiff’s motion for appointment of counsel was made simultaneously with a motion for
summary judgment. The Court will address the latter motion by separate order.
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1999). As a general matter, such a measure should be taken sparingly. See, e.g., Fed.

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R. Civ. P. 706 Advisory Committee Notes, 1972 Proposed Rules ("[E]xperience

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indicates that actual appointment is a relatively infrequent occurrence . . ."); 4 Jack B.

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Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 706.02[2] (2d ed.

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2005) (“It is indisputable that court appointment of experts is a rarity.”) Appointment

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may be appropriate when "scientific, technical, or other specialized knowledge will

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assist the trier-of-fact to understand the evidence or decide a fact in issue . . . ."

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Ledford v. Sullivan, 105 F.3d 354, 358-59 (7th Cir. 1997); see also McKinney v.

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Anderson, 924 F.2d 1500, 1511 (9th Cir. 1991), vacated on other grounds sub nom.,

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Helling v. McKinney, 502 U.S. 903 (1991) (observing that an expert witness may be

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appointed if needed to significantly assist the court, and if the case involves complex

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scientific issues); Trimble v. City of Phoenix Police Dept., 2006 WL 778697 (D. Ariz.

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2006) ("Rule 706 permits the trial court, in an exercise of its discretion, to appoint an

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independent expert to aid the trial court under certain circumstances. Reasonably

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construed, it does not contemplate the appointment of, and compensation for, an expert

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to aid one of the parties.") (emphases added).

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This case does not involve complex scientific evidence or issues, and Plaintiff

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has not demonstrated that the complexity of the case warrants the appointment of

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expert witnesses to assist the Court. Accordingly, Plaintiff's motion to appoint expert

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witnesses is DENIED.

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IT IS SO ORDERED.
DATED: October 27, 2011

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Jan M. Adler
U.S. Magistrate Judge

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