Cejas v. Paramo et al

Filing 147

ORDER denying 145 Motion to Appoint Expert; denying 146 Motion for Discovery. Signed by Magistrate Judge William V. Gallo on 3/31/2023. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (djk)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ANDREW A. CEJAS,
Plaintiff,

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v.

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DANIEL PARAMO, et al.,

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Case No.: 14-CV-1923-JO-WVG
ORDER ON MOTIONS TO
APPOINT EXPERT AND FOR
EXPERT REPORTS (Doc. Nos. 145,
146.)

Defendants.

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Before the Court are two motions, namely Andrew A. Cejas’ (“Plaintiff”) Motion to

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Appoint Expert and Motion for Expert Reports. (Doc. Nos. 145, 146.) Plaintiff first moves

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the Court for appointment of an expert witness. (Doc. No. 145.) He also moves the Court

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for an order compelling Defendants’ production of their unretained expert witness’ report.

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(Doc. No. 146.) Having reviewed and considered Plaintiff’s submissions, the Court

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DENIES both Motions, addresses each in turn, and explains below.

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Rule 706 of the Federal Rules of Evidence governs Plaintiff’s request for an

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appointment of an expert witness. Rule 706(a) provides, “On a party’s motion or on its

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own, the court may order the parties to show cause why expert witnesses should not be

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appointed and may ask the parties to submit nominations.” Fed. R. Evid. 706(a). The Rule

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adds that “the court may appoint any expert that the parties agree on and any of its own

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choosing.” Id. The Court’s exercise of its discretion to appoint a neutral expert witness
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hinges on whether “scientific, technical, or other specialized knowledge will assist the trier-

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of-fact to understand the evidence or decide a fact in issue.” Venegas v. Sniff, 2021 WL

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6104186 at *4 (C.D. Cal. Sept. 10, 2021) (citing Christian v. Cty. of Los Angeles, 2020 WL

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8410438 at *2 (C.D. Cal. Apr. 9, 2020) and Bruister v. Asuncion, 2018 WL 5903908, at *1

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(C.D. Cal. May 30, 2018).). At all times, “the appointment of an expert is widely considered

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an extraordinary activity that is appropriate only in rare instances.” Id. (citing Leichner v.

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United States, 2017 WL 10562761 at *4 (C.D. Cal. Mar. 9, 2017).

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Here, the Court finds no factual or legal basis to support Plaintiff’s Motion to

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Appoint Expert Witness. (Doc. No. 145.) Plaintiff’s instant Motion consists of two parts

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and nothing more, namely his request for appointment and citations to general propositions

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of law relating to his request. Notably, Plaintiff offers no reason to invite the Court’s

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exercise of its discretion to appoint an expert in this case. In its independent inquiry into

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the matter, the Court confirms no reason exists. This action is not of a complex variety that

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would call for an expert poised with scientific, technical, or other specialized knowledge

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to assist the trier-of-fact. In fact, the sole cause of action to be tried is Plaintiff’s retaliation

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claim, which implicates Defendants’ purported retaliation after Plaintiff complained about

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Defendants’ confiscation of his swastika pendant and bandana bearing the insignia.

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Taken together, Plaintiff’s operative factual allegations do not warrant the

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appointment of an expert witness. The allegations may be proven or disproven through

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personal knowledge, lay testimony, and other evidence that does not rise to the level of

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complexity Rule 706(a) contemplates. Sekerke v. Arkwright, 2023 WL 1453147 at **7-8

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(S.D. Cal. Feb. 1, 2023) (denying appointment of expert witness for lack of complexity

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under Rule 706) (citing Ledford v. Sullivan, 105 F.3d 354, 358-359 (7th Cir. 1997)

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(affirming denial of appointment of expert witness and noting “determining deliberate

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indifference was not so complicated that an expert was required… because the test to

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decide whether a prison official acted with deliberate indifference is a subjective one.”);

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see also Kakowski v. Allison, 2022 WL 2306828 (S.D. Cal. June 27, 2022) (finding same

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and citing Woods v. Carey, 488 F. App’x 194, 196 (9th Cir. 2012), Sanders v. York, 446 F.
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App’x 40, 43 (9th Cir. 2011), and Torbert v. Gore, 2016 WL 3460262 at *2 (S.D. Cal. June

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23, 2016)). The Court separately notes Plaintiff’s indigence does not entitle him to

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appointment of an expert witness. Snow v. Mar, 785 F. App’x 465, 466 (9th Cir. 2019)

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(observing “there is no statutory authorization for a court-appointed investigator for civil

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litigants proceeding in forma pauperis.”). For these reasons, the Court DENIES Plaintiff’s

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Motion for Appointment of Expert Witness.

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In turning to Plaintiff’s Motion for Expert Reports, the Court DENIES Plaintiff’s

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request to compel Defendants’ disclosure of any reports from their unretained expert. On

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March 15, 2023, Defendants filed their Notice of Expert Disclosures (“Notice”), which

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indicated Defendants designated Efrin Ramirez, a Correctional Officer in the Investigative

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Services Unit at Richard J. Donovan Correctional Facility, as an unretained expert in this

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matter. (Doc. No. 144.) Defendants averred Mr. Ramirez “is not specially retained or

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employed to provide expert testimony” and indicated Mr. Ramirez is likely to testify to

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“the significance of the Nazi swastika symbol in the prison gang context and the safety and

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security concerns” that accompany the same. (Id., 1:27-2:3.) Defendants’ Notice added Mr.

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Ramirez’s “opinions will be based on his background, training, and expert investigating

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gang activity in prison, applicable prison policies and regulations, relevant documents form

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Plaintiff’s prison records, and a review of Plaintiff’s confiscated items bearing the swastika

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symbol.” (Id., 2:3-7.)

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Rule 26(b) of the Federal Rules of Civil Procedure mandates the disclosure of an

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expert report only from retained or specially employed experts. Fed. R. Civ. P. 26(b); see

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Witman v. Knight Transportation, Inc., 2016 WL 8715668, at *3 (S.D. Cal. Nov. 21, 2016)

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(stating “If [] witnesses are unretained, a party need only disclose the “subject matter on

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which the witness is expected to present evidence under Federal Rule of Evidence 702,

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703, or 705” and “a summary of facts and opinions to which the witness is expected to

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testify.”) (citing Fed. R. Civ. P. 26(a)(2)(C).). Here, Defendants’ Notice makes clear Mr.

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Ramirez is an unretained expert. For this reason, Plaintiff is not entitled to an expert report

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from Mr. Ramirez. To that end, the Court finds Defendants’ Notice satisfies Defendants’
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obligation to disclose at least 90 dates before trial “a summary of the facts and opinions to

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which the [unretained] witness is expected to testify.” Fed. R. Civ. P. 26(c)(ii). The Rule

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26(a)(2)(C) disclosures are “considerably less extensive” than those required for retained

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experts and courts “must take care against requiring undue detail.” Witman, 2016 WL

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8715668 at *3 (citing Fed. R. Civ. P. 26(a)(2) and Advisory Committee's Note (2010); see

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also Fed. R. Civ. P. 1 Advisory Committee's Note (2012) (imploring a “cooperative and

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proportional use of procedure”).). Accordingly, Plaintiff’s Motion for Expert Reports is

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DENIED.

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IT IS SO ORDERED.
Dated: March 31, 2023

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