Bland v. Allan et al

Filing 76

MINUTE ORDER denying 70 Motion for "Subpena"; denying 73 Motion for Court Appointed Experts Under Rule 706. By Magistrate Judge Michael J. Watanabe on 06/26/2014.(athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03000-CMA-MJW
AMIR BLAND,
Plaintiff(s),
v.
OFF. MICHAEL ALLAN, Official & Individual,
CITY OF AURORA, and
OFF. EWERT, Official & Individual,
Defendant(s).

MINUTE ORDER

Entered by U. S. Magistrate Judge Michael J. Watanabe
It is hereby ORDERED that plaintiff’s motion for “Subpena” (Docket No. 70) is
denied. Plaintiff is asking the court to direct a non-party (Limon Correctional Facility) to
take a photograph of scarring on his lower back to use as evidence in his case and to
charge the cost to his inmate account. It is not clear to the court whether plaintiff
requests the photograph to accompany a motion and/or whether he seeks to obtain it
for use at trial. In any event, the court has doubts as to whether such a photograph is
essential for plaintiff to prosecute his claim. Plaintiff can describe his scars orally or in
writing or show them at trial rather than relying on a photograph.
It is further ORDERED that plaintiff’s Motion for Court Appointed Experts Under
Rule 706 (Docket No. 73) is denied. Appointment of experts pursuant to Fed. R. Civ. P.
706 in this case is not warranted. “The appointment of an expert pursuant to Rule 706
is not intended to further partisan interests of any party, but to aid the Court, through the
services of an impartial expert in its assessment of technical issues.” Tuttamore, 2013
WL 248163, at *1 (D. Colo. Jan. 23, 2013) (quoting Byng v. Campbell, 2008 WL
4662349, at *7 (N.D.N.Y. Oct. 20, 2008)). The court finds no such technical issues in
this case that necessitate appointment of experts under Rule 706.
Furthermore, while plaintiff is proceeding in forma pauperis pursuant to 28 U.S.C.
§ 1915, section 1915(c) provides, in pertinent part, that “[w]itnesses shall attend as in
other cases.” It does not authorize the government to pay or advance the fees and
expenses for witnesses. Patel v. United States, 399 F. App’x 355, 359 (10th Cir. 2010);
Tuttamore v. Allred, 2013 WL 248163, at *1; Blake v. Webster, 2010 WL 3908702, at *1

2
(D. Colo. Oct. 1, 2010). “The right of access to the courts does not extended to
providing witness fees for a witness the prisoner claims to be essential to his in forma
pauperis case.” Tuttamore, 2013 WL 248163 at *1 (citing Johnson v. Hubbard, 689
F.2d 286, 288-90 (6th Cir. 1983)). The court has no more authority to appoint an expert
witness at government expense for the plaintiff than it has to require counsel to
represent him. As stated by the Tenth Circuit in affirming the district court’s denial of a
motion for appointment of an expert, “[t]he plaintiffs’ dilemma in being unable to proceed
in this damage suit because of the inability to pay for expert witnesses does not differ
from that of nonprisoner claimants who face similar problems. . . . By seeking
government funding in this case, plaintiffs are in effect asking for better treatment than
their fellow-citizens who have not been incarcerated but who have at least equal claims
for damages.” Patel, 399 F. App’x at 359. “As a voluntary litigant in a federal lawsuit,
Plaintiff must obtain the assistance of expert witnesses on his own behalf. To this end,
if the experts demand payment for their services, Plaintiff must pay for the services of
such witnesses.” Provencio v. Stark, 2010 WL 2754591, at *1 (D. Colo. July 12, 2010).

Date: June 26, 2014