Sekerke v. Gonzalez et al

Filing 82

ORDER Denying Without Prejudice Plaintiff's 64 Motion to Appoint Counsel And Expert Witness. Signed by Magistrate Judge William V. Gallo on 4/19/2017. (All non-registered users served via U.S. Mail Service)(dxj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KEITH WAYNE SEKERKE,

Case No.: 15-CV-00573-JLS-WVG
Plaintiff,

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v.

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ORDER DENYING WITHOUT
PREJUDICE PLAINTIFF’S MOTION
TO APPOINT COUNSEL AND
EXPERT WITNESS

JOSE GONZALEZ, et al.,

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Defendants.
[ECF No. 64]

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Plaintiff Keith Sekerke, proceeding pro se, brings this action under 42 U.S.C. § 1983

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alleging violations of his rights under the Eighth and Fourteenth Amendments. Plaintiff

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now moves for appointment of counsel and expert witness. For the reasons set forth below,

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the Court DENIES both motions without prejudice.

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BACKGROUND

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The Court has recited the facts and allegations of this case in two recent orders. (See

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ECF Nos. 73, 78.) Thus, the Court will simply note at this point that there has been

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extensive litigation since Plaintiff filed his Complaint. In the present motions, Plaintiff

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moves the Court to appoint counsel and an expert witness on his behalf, claiming

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exceptional circumstances exist to warrant the appointment of counsel. (ECF No. 64 at

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6:22-26.) However, Plaintiff does not articulate the legal or factual basis for the

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appointment of an expert witness on his behalf. Defendants timely filed a Response in

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Opposition. (ECF No. 71.)

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MOTION TO APPOINT COUNSEL

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Plaintiff argues that good cause exists for the appointment of counsel. Plaintiff

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claims that exceptional circumstance exist because “disabilities” prevent him from

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understanding the courts orders. (ECF No. 64 at 6:22-27.) Additionally, Plaintiff claims

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the action is complex such that it creates an exceptional circumstance because Plaintiff will

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need to “investigate and adequately litigate” the state of mind of Defendants including the

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taking of depositions. (ECF No. 64 at 10:4-7.) Further, Plaintiff is claiming documents are

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being withheld by the San Diego County Sheriff’s Department because an attorney needs

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to make the request. (ECF No. 64 at 9:13-16.)

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“There is no constitutional right to appointed counsel in a § 1983 action.” Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (partially overruled en banc on other

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grounds). Thus, federal courts do not have the authority “to make coercive appointments

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of counsel.” Mallard v. U.S. Dist. Ct., 490 U.S. 296, 310 (1989); see also United States v.

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$292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995). Districts courts do have

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discretion, however, pursuant to 28 U.S.C. section 1915(e)(1), to request that an attorney

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represent indigent civil litigants upon a showing of exceptional circumstances. See

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Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). “A finding

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of the exceptional circumstances of the plaintiff seeking assistance requires at least an

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evaluation of the likelihood of the plaintiff’s success on the merits and an evaluation of the

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plaintiff’s ability to articulate his claims ‘in light of the complexity of the legal issues

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involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986)); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

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Plaintiff’s arguments are not persuasive. At the outset, the Court notes that Plaintiff

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has filed a First Amended Complaint, (ECF No. 42,) which Defendants have Answered,

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(ECF No. 45.)1 At this stage in the litigation, the Court is unable to determine whether

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Plaintiff will succeed on the merits.

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Plaintiff fails to elaborate as to what disability prevents him from understanding

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court orders. The record indicates Plaintiff indeed understands, and complies with, court

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orders. (See, e.g., ECF No. 80, 68, 61, 58, and 56.) Additionally, factual disputes and

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anticipated examinations of witnesses do not warrant the finding of exceptional

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circumstances nor does it warrant the finding that a case is complex. See Wilborn, 789 F.2d

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at 1331 (“If all that was required to establish successfully the complexity of the relevant

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issues was a demonstration of the need for development of further facts, practically all

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cases would involve complex legal issues.”); see also Meeks v. Nunez, 2017 WL 117300

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*2 (finding that exceptional circumstances do not exist where a pro se plaintiff needs

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assistance with the investigation and discovery of the case). Moreover, Plaintiff’s

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attachments to the motion demonstrate that he is able to investigate and develop an

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evidentiary record. Plaintiff attached a document labeled ‘Exhibit G’ that appears to be an

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affidavit of a witness to the events in question supporting Plaintiff’s claims. (See ECF No.

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64 at 91.) This exhibit, along with Plaintiff’s numerous filings, demonstrates to the Court

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that Plaintiff is able to investigate and litigate the matter.

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Plaintiff’s claim that he needs an attorney to retrieve documents from the San Diego

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County Sheriff’s Department is equally without merit as the exhibit attached by Plaintiff

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shows this to be a misstatement of the requirement. The San Diego County Sheriff’s

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Department response to the medical records request shows Plaintiff needed to sign a release

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and pay a fee, and that access to Plaintiff’s records was not denied on the basis he is not an

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attorney. (See ECF No. 64 at 20.)
For these reasons, the Court DENIES Plaintiff’s motion to appoint counsel without

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prejudice.

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While there have been numerous fillings in the matter, these are the only filings to date that relate
directly to the merits of the claim.
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MOTION TO APPOINT EXPERT WITNESS

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Plaintiff also moves the Court for the appointment of an expert witness. However,

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Plaintiff has not articulated what field of expertise is needed to litigate the matter. Further,

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Plaintiff offers no factual or legal basis for such an appointment. Assuming, arguendo, the

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Court applies all of Plaintiff’s reasoning for the appointment of counsel to the argument

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for the appointment of an expert witness, the request similarly fails.

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The Federal Rules of Evidence allow a District Court to appoint an expert on its own

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motion or on the motion of a party. Fed. R. Evid. 706(a); see also McKinney v. Anderson,

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924 F.2d 1500, 1510 (9th Cir.1991), cert. granted, judgment vacated sub nom. Helling v.

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McKinney, 502 U.S. 903, 112 S.Ct. 291, 116 L.Ed.2d 236 (1991) and judgment reinstated,

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959 F.2d 853 (9th Cir.1992), aff'd sub nom. Helling v. McKinney, 509 U.S. 25, 113 S.Ct.

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2475, 125 L.Ed.2d 22 (1993). While the court has the discretion to appoint an expert and

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to apportion costs, including the appointment of costs to one side, Fed. R. Evid. 706; Ford

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ex rel. Ford v. Long Beach Unified School Dist., 291 F.3d 1086, 1090 (9th Cir.2002);

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Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071, where

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the cost would likely be apportioned to the government, the court should exercise caution.

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Moreover, Rule 706 is not a means to avoid the in forma pauperis statute and its prohibition

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against using public funds to pay for the expenses of witnesses, Dixon v. Ylst, 990 F.2d

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478, 480 (9th Cir. 1993); Manriquez v. Huchins, 2012 WL 5880431, * 12 (E.D. Cal. 2012),

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nor does Rule 706 contemplate court appointment and compensation of an expert witness

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as an advocate for Plaintiff, Faletogo v. Moya, 2013 WL 524037, *2 (S.D. Cal. 2013).

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When addressing whether the Court should appoint an expert, the Court should examine

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whether there exists complex scientific, technical, or other specialized trial issues.

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Compare McKinney v. Anderson, supra at 1511 (recommending the district court appoint

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counsel to pro se prisoner plaintiff considering the complexity of the scientific evidence

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regarding the health effects of second hand smoke), with Faletogo, supra at *1 (finding

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that an excessive force claim was not so complex as to require the testimony of expert

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witnesses to assist the trier of fact).
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The Court finds the issues involved in Plaintiff’s excessive force claim are not so

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complex as to require the testimony of expert witnesses to assist the trier of fact. See, e.g.,

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Faletago, supra at *1-2 (in a civil rights action in which the plaintiff claimed law

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enforcement assaulted him in violation of the Eighth Amendment, the court found an expert

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witness was unnecessary for such a claim because there was no scientific, technical, or

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specialized knowledge required to understand the evidence or determine a fact). Because

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Plaintiff does not identify an issue that requires scientific, technical, or specialized

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knowledge, the exceptional circumstances which might require the appointment of an

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expert witness do not exist.

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Accordingly, Plaintiff’s request for appointment of counsel and expert witness is
DENIED without prejudice.

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CONCLUSION
For the reasons set forth above, both Plaintiff’s motion for appointment of counsel
and appointment of an expert witness are DENIED without prejudice.
IT IS SO ORDERED.
Dated: April 19, 2017

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