James v. Agnew et al

Filing 96

ORDER: (1) Denying Plaintiff's Motion to Appoint Video Enhancement Expert; (2) Denying Plaintiff's Motions for Extensions of Time for All Discovery (re Doc. Nos. 74 , 82 ). Signed by Magistrate Judge Mitchell D. Dembin on 11/3/2016. (All non-registered users served via U.S. Mail Service)(dls)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 15cv409-AJB-MDD

KYLE JAMES,
Plaintiff,
v.
DEPUTY AGNEW and DEPUTY
TADE,
Defendants.

ORDER:
(1) DENYING PLAINTIFF’S
MOTION TO APPOINT VIDEO
ENHANCEMENT EXPERT;
(2) DENYING PLAINTIFF’S
MOTIONS FOR EXTENSION OF
TIME FOR ALL DISCOVERY
[ECF Nos. 74, 82]

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On September 27, 2016, Plaintiff filed this Motion to the Court for

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Appointment of Expert (Video Enhancement Expert) Under Rule 706 Fed.

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R. Evid. and Exten[s]ion of Time for All Discovery Under Rule 6(b) Fed. R.

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Civ. P. (ECF No. 74). On October 14, 2016, Plaintiff filed a Motion for

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Extension of Time for All Discovery. (ECF No. 82). For the reasons set

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forth below, both motions are DENIED.

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15cv409-AJB-MDD

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I.

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Plaintiff explains a video of the alleged excessive force incident is “a

Motion for Appointment of Expert (ECF No. 74)

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little blurry,” and asks the Court to appoint a video enhancement expert for

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him “to show the Court the defendant and counsel are lying to the Court” on

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the belief that with the appointment of the expert “defendant’s counsel

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won’t go to trial saving the Court and County time and money.” Plaintiff

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asks the Court to appoint him an expert because he is indigent and has

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limited access to communicate with experts due to his inmate status.

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District courts have broad discretion to appoint an expert witness,

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either by their own motion or on motion of a party. FED. R. EVID. 706(a);

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McKinney v. Anderson, 924 F.2d 1500, 1510-11 (9th Cir. 1991) (overruled on

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other grounds by Helling v. McKinney, 502 U.S. 903 (1991)). “Reasonably

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construed, [Rule 706] does not contemplate the appointment of, and

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compensation for, an expert to aid one of the parties.” Walker v. Woodford,

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2008 WL 793413 (S.D. Cal., March 24, 2008) (citation omitted); see also

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Faletogo v. Moya, 2013 WL 524037 (S.D. Cal., Feb. 12, 2013) (same). A

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court appointed expert’s function is to aid the Court in understanding the

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issues, not to aid the litigant in presenting his claims. Gomez v. Sogge, 2010

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WL 2612319 (N.D. Cal. June 24, 2010).

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The Court finds that good cause to appoint an expert witness does not

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exist. Plaintiff is seeking appointment of a video enhancement expert to aid

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him since he has been unable to retain his own expert. As discussed above,

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it is not the purpose of Rule 706 for the Court to provide an expert to a

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litigant or to provide countering opinions or second opinions in support of a

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particular party. Furthermore, the Court does not deem appointment of a

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neutral video enhancement expert necessary to aid the Court in reviewing
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15cv409-AJB-MDD

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evidence at this time because the video has not been presented as evidence

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in this action. If the video is later presented, is material and is indeed

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blurry, Rule 706 permits the Court to appoint a neutral expert on its own

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motion if the Court deems necessary. Accordingly, Plaintiff’s Motion for a

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Court appointed expert witness is DENIED.

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II.

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Plaintiff filed two motions that seek an extension of the time for all

Motion for Extension of Time for All Discovery

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discovery. (ECF Nos. 74, 82). Plaintiff moves for an extension on the

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grounds that he has been delayed in discovery by his status as an indigent

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inmate, by limited access to paper and a law library, by interference from

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Defendants, their counsel and other state actors, by the necessity of

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appearing in state court for criminal proceedings, by transfer to Chino State

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Prison, and will be further delayed by his impending transfer to federal

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custody to stand trial for a federal charge. (ECF No. 74).

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A scheduling order “may be modified only for good cause and with the

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judge’s consent.” FED. R. CIV. P. 16(b)(4). “The district court may modify

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the pretrial schedule ‘if it cannot reasonably be met despite the diligence of

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the party seeking the extension.’ Fed.R.Civ.P. 16 advisory committee's notes

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(1983 amendment)…” Johnson v. Mammoth Recreations, Inc., 975 F.2d

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604, 609 (9th Cir. 1992). “…[T]he focus of the inquiry is upon the moving

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party's reasons for seeking modification…. If that party was not diligent,

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the inquiry should end.” Id. (citation omitted).

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The Court finds Plaintiff has not shown good cause for extending

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discovery. Discovery commenced in this action on March 16, 2016, and

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closed on October 14, 2016. (ECF No. 35 (Rule 16(b) Scheduling Order)).

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The 7 month discovery period provided ample time for discovery in this
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simple case involving only one excessive force claim against one defendant,

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even with the routine constraints indigent inmates endure. During the

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discovery phase, Plaintiff sought discovery from Defendants and third

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parties. For instance, Plaintiff sought and obtained medical records and the

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surveillance video of the alleged excessive force incident.

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Although Plaintiff complains that he had insufficient access to paper

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and the law library to conduct discovery, his voluminous filings—usually

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including topical case law and statutes—show he had sufficient access to

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paper and legal sources.

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Plaintiff explains that if discovery were extended, he would file a

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motion to compel Defendant’s disciplinary records, but his papers disclose

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he only requested those records informally and his papers do not explain

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why Plaintiff did not formally request the discovery sooner in the discovery

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phase. Plaintiff has not shown diligence with respect to obtaining

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Defendant’s disciplinary records.

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Similarly, Plaintiff explains that he has not yet obtained some of his

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medical records or the relevant Jail Policy and Procedure Manual, but he

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does not set forth facts showing his diligence in attempting to obtain this

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discovery or in bringing the matter to the Court’s attention.

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Plaintiff also states that he will seek video evidence of one or two

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entirely different uses of force incidents involving someone who is not

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named in the complaint. The Court finds that this proposed discovery is not

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relevant or proportional to this case, and therefore Plaintiff’s intention to

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pursue that material does not show good cause for extending discovery.

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Further, although Plaintiff notes that he has not taken the deposition

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of his key witness, he does not attribute that to the length of the discovery
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period; he attributes that to his inability to afford the deposition. An

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extension of discovery would not change Plaintiff’s inability to afford the

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deposition.

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Finally, Plaintiff’s first motion (ECF No. 74) seeks the discovery

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extension, in part, to ensure that if this Court were to grant his concurrent

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motion to appoint a video enhancement expert, that expert could be timely

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designated and disclosures made within the discovery period. Because this

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Court denies Plaintiff’s motion to appoint the expert above, no extension of

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discovery for that expert is necessary.

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Consequently, the Plaintiff’s motions for an extension of all discovery
are DENIED.

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IT IS SO ORDERED.

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Dated: November 3, 2016

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