Torbert v. Gore et al

Filing 85

ORDER: (1) Denying Third Motion for Appointment of Counsel 82 ; and (2) Denying Second Motion for Appointment of Expert Witness 84 . Signed by Magistrate Judge Nita L. Stormes on 6/23/2016. (All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 14cv2911 BEN (NLS)

JAVON LAMAR TORBERT,
Plaintiff,

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WILLIAM D. GORE, Sheriff of San
Diego Sheriff Department; DEPUTY
DAILLY, Sheriff of San Diego Sheriff
Department; DEPUTY McMAHON,
Sheriff of San Diego Sheriff Department;
DEPUTY Y.G. GEBREBIORGIS, Sheriff
of San Diego Sheriff Department;
SERGEANT ESTRADA, Sheriff of San
Diego Sheriff Department; COUNTY OF
SAN DIEGO; and DOES 1-50,

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ORDER:

v.

Defendants.

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(1) DENYING THIRD MOTION FOR
APPOINTMENT OF COUNSEL
[Dkt. No. 82]; and
(2) DENYING SECOND MOTION
FOR APPOINTMENT OF EXPERT
WITNESS [Dkt. No. 84].

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Plaintiff Javon Lamar Tobert (“Plaintiff”), a prisoner proceeding pro se and in

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forma pauperis, filed this civil rights action on December 9, 2014. He alleges excessive

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force, cruel and unusual punishment and deliberate indifference claims arising from an

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alleged incident where one of the defendants slammed a metal door on Plaintiff’s left

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arm.

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Plaintiff asks this court, for a third time, to appoint him counsel from the court’s

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pro bono panel, and asks again for appointment of an expert witness. He argues that the

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appointments are appropriate here because (1) Torbert is mentally impaired, suffering

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from serious mental health issues; (2) he lacks education and has limited access to the

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law library due to his housing assignment; (3) he will require the help of experts to prove

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his claims, which is complex and presents scientific issues outside Torbert’s scope of

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understanding; and (4) the parties dispute the facts and Torbert is not trained in how to

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present evidence.

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Because there has not been a substantial change in circumstance from the previous

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requests, the court DENIES the motion for appointment of counsel and DENIES the

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motion for appointment of expert.

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I.

MOTION FOR APPOINTMENT OF COUNSEL

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A.

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The Constitution provides no absolute right to the appointment of counsel in any

Legal Standard.

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civil proceeding. Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994).

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In pro se and in forma pauperis proceedings, district courts do not have the authority “to

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make coercive appointments of counsel.” Mallard v. United States District Court, 490

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U.S. 296, 310 (1989). But they do have the discretion to request that an attorney

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represent an indigent civil litigant upon a showing of “exceptional circumstances.” 28

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U.S.C. § 1915(e)(1); Agyeman v. Corrections Corp. Of America, 390 F.3d 1101, 1103

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(9th Cir. 2004).

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A finding of exceptional circumstances “requires an evaluation of both the
likelihood of success on the merits and the ability of the [plaintiff] to articulate his claims
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pro se in light of the complexity of the legal issues involved.” Wilborn v. Escalderon,

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789 F.2d 1328, 1331 (9th Cir. 1986), quoting Weygandt v. Look, 718 F.2d 952, 954 (9th

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Cir. 1983). Neither of the Wilborn factors are dispositive, and they must be viewed

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together before the district court reaches its decision. Id.

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B.

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A plaintiff that provides no evidence of his likelihood of success at trial fails to

Likelihood of Success on the Merits.

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satisfy the first factor of the Wilborn test. Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D.

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Cal. 1993). Here, there is very little before the court regarding the merits of Plaintiff’s

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case, other than the assertions in the complaint. As a result, it is difficult at this time to

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determine the likelihood that Plaintiff will succeed on the merits. Therefore, Plaintiff

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fails to satisfy the first Wilborn factor.

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C.

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Where a pro se civil rights plaintiff shows he has a good grasp of basic litigation

Plaintiff’s Ability to Articulate His Claims.

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procedure and has been able to articulate his claims adequately, he does not demonstrate

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the exceptional circumstances required for the appointment of counsel. See Palmer v.

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Valdez, 560 F.3d 965, 970 (9th Cir. 2009). As another court in this district noted, there is

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“no doubt [that] most pro se litigants find it difficult to articulate their claims and would

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be better served with the assistance of counsel.” Garcia v. Cal. Dep’t of Corrections &

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Rehab., 2013 WL 485756, at *1 (S.D. Cal. Feb. 6, 2013). But it is for this reason that

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federal courts employ procedures that protect a pro se litigant’s rights. See Haines v.

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Kerner, 404 U.S. 519, 520 (1972). In pro se civil rights cases, a court must construe the

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pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los

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Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). Thus, where a pro se plaintiff

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can articulate his claims in light of their relative complexity, there are no exceptional

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circumstances to justify appointment of counsel. Garcia, 2013 WL 485756, at *1, citing

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Wilborn, 789 F.2d at 1331.

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The purported complexity of this case, Torbert’s mental illness, and the presence
of disputed facts have not prevented him from articulating his claims. This court has
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reviewed Plaintiff’s complaint and other pleadings and finds that the issues he raises are

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not particularly complex. The court understands Plaintiff’s claims and the relief sought.

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Plaintiff has also demonstrated that he has a good grasp on basic litigation procedure, as

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evidenced by the pleadings and submissions he has filed with this court. Further, as to

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his claim of limited access to the law library, such an issue is common to most prisoners,

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and does not amount to exceptional circumstances. See, e.g., Wood v. Housewright, 900

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F.2d 1332, 1335-36 (9th Cir. 1990) (denying appointment of counsel where plaintiff

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complained that he had limited access to law library and lacked a legal education). The

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court finds that Plaintiff has sufficiently put on his case thus far in light of the complexity

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of the legal issues involved.

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Viewing the Wilborn factors together, Plaintiff has not shown a likelihood of

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success on the merits of his case or that he cannot articulate his claims and litigate this

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action pro se. Therefore, Plaintiff has not established the exceptional circumstances

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required for the appointment of counsel pursuant to 28 U.S.C. Section 1915(e)(1).

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II.

MOTION FOR APPOINTMENT OF EXPERT WITNESS

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Torbert asks this court to appoint an expert witness to help the trier of fact

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understand the evidence and determine the facts at issue regarding his excessive force,

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medical neglect and emotional distress claims. He also says that Defendants have a

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medical expert so any medical evidence will be biased toward the Defendants. He also

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says there is a conflict of interest with Defendants’ expert, Dr. Alfred Joshua, because

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Plaintiff wrote several grievances against Dr. Joshua.

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A. Legal Standard.

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An expert witness may testify to help the trier of fact determine the evidence or a

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fact at issue. Fed. R. Evid. 702. A court has full discretion to appoint an expert witness

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either by its own motion or by a party’s motion. Fed. R. Evid. 706(a); McKinney v.

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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). Appointment of an expert witness may

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generally 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....” Levi v. Dir.

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of Corr., 2006 U.S. Dist. LEXIS 18795, *2 (E.D.Cal. 2006) (citation omitted).

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The in forma pauperis (IFP) statute, 28 U.S.C. § 1915, does not waive the

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requirement of the payment of fees or expenses for witnesses in a § 1983 prisoner civil

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rights action. Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993). “Reasonably construed,

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[Rule 706] does not contemplate the appointment of, and compensation for, an expert to

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aid one of the parties.” Trimble v. City of Phoenix Police Dept., 2006 U.S. Dist. LEXIS

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13061, *6 (D. Ariz. 2006) (citation omitted).

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B. Appointment of an Expert.

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Here, it is unclear whether Torbert has the means to retain and compensate an
expert. Under the IFP statute he would have pay for his own expert.

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Further, to prevail on his Eighth Amendment claim for deliberate indifference,

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Torbert must show that Defendants acted with deliberate indifference to his serious

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medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1983). Deliberate indifference

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has a subjective component because it requires the court to “consider the seriousness of

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the prisoner’s medical need and the nature of the defendant’s response to that need.”

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Levi, 2006 U.S. Dist. LEXIS at 3 (citation omitted). In the context of such a claim, “the

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question of whether the prison officials displayed deliberate indifference to [Plaintiff's]

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serious medical needs [does] not demand that the jury consider probing, complex

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questions concerning medical diagnosis and judgment.” Id. Courts have declined to

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appoint an expert under such circumstances. Id. Therefore, Plaintiff's request for

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appointment of a medical expert witness is DENIED.

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III.

ORDER

The court DENIES without prejudice Torbert’s motion for appointment of
counsel and his motion for appointment of an expert witness.
IT IS SO ORDERED.
Dated: June 23, 2016

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