Orr v. Correction Corporation of America et al

Filing 39

MEMORANDUM DECISION AND ORDER denying 24 Motion to Compel; denying without prejudice 26 Motion to Appoint Counsel ; denying without prejudice 28 Motion to Appoint Expert; granting 30 Motion to Dismiss claim of enlarged heart; denying 34 Motion to Strike affidavit of Dennis A. Orr; dispositive motions ddl extended to 12/1/11. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DENNIS A. ORR,
Case No. 1:10-cv-0034-S-EJL
Plaintiff,
v.

WARDEN at C.C.A. PHILLIP
VALDEZ, and MEDICAL DOCTOR at
C.C.A. KLINT STANDER,

MEMORANDUM DECISION
AND ORDER

Defendants.

Several motions are currently pending before the Court in this prisoner civil rights
matter. In the interests of avoiding additional delay, the Court shall resolve these motions
on the written record without oral argument. D. Idaho L. Civil R. 7.1(d).
BACKGROUND
Plaintiff is incarcerated at the Idaho Correctional Center (ICC). He claims that
prison employees and officials have been deliberately indifferent to his serious medical
needs, in violation of his rights under the Eighth Amendment. The Court conducted an
initial review of Plaintiff’s Amended Complaint, and allowed him to proceed against Dr.
Klint Stander and Warden Phillip Valdez. The Court dismissed other defendants and

MEMORANDUM DECISION AND ORDER - 1

claims.1 (Dkt. 19, pp. 4-5.)
Defendants have filed an Answer, and the Court has issued a Scheduling Order.
Currently pending are Plaintiff’s motions for the appointment of counsel and expert
assistance, and Plaintiff’s motions related to discovery matters. Defendants have also
filed a motion to strike an affidavit submitted by Plaintiff.
MOTION TO APPOINT COUNSEL
The Court previously denied Plaintiff’s request for the appointment of counsel.
(Dkt. 8, p. 12.) He has now renewed that request.
Unlike criminal defendants, prisoners and indigents in civil actions have no
constitutional right to counsel unless their physical liberty is at stake. Lassiter v. Dep’t of
Soc. Servs., 452 U.S. 18, 25 (1981). Whether a court appoints counsel for indigent
litigants is within the court’s discretion. Wilborn v. Escalderon, 789 F.2d 1328, 1330-31
(9th Cir. 1986). In civil cases, counsel should be appointed only in “extraordinary cases.”
Id. at 1330. To determine whether extraordinary circumstances exist, the court should
evaluate the likelihood of success on the merits of the case, and the ability of the plaintiff
to articulate his claims pro se in light of the complexity of legal issues involved. Terrell v.
Brewer, 935 F.2d 1015, 1017 (9th Cir. 1990).
Applying the factors to this case, the Court reaffirms its conclusion that Plaintiff
has articulated his claims sufficiently, the legal issues are not complex in this matter, and

1

Plaintiff’s request to dismiss a claim based on a failure to treat his enlarged heart will be granted.
(Dkt. 30.)
MEMORANDUM DECISION AND ORDER - 2

the likelihood of success on the merits is, at best, unclear at this juncture. If it is
appropriate at a later date in this litigation, the Court will reconsider appointing counsel
on its own motion.2
MOTION FOR THE APPOINTMENT OF AN EXPERT
Plaintiff has also requested that the Court appoint an expert to assist him in
presenting his claims. (Dkt. 28.) The in forma pauperis statute, 28 U.S.C. § 1915, does
not authorize federal courts to appoint or authorize payment for expert witnesses for
prisoners or other indigent litigants. Ordinarily, the plaintiff must bear the costs of his
litigation, including expert expenses, even in pro se cases. See Pedraza v. Jones, 71 F.3d
194, 196 (5th Cir. 1995); Malik v. LaVelley, 994 F.2d 90 (2d Cir. 1993); Boring v.
Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 1987) (noting that an inmate’s dilemma in being
unable to proceed with suit because of inability to pay for expert witness was no different
than that of non-prisoner claimants who face similar problems).
A federal court may appoint an expert witness under Federal Rule of Evidence
706(a), with the expert’s fees to be allocated among the parties “in such proportion and at
such time as the court directs.” Fed. R. Evid. 706(b). Under this rule, experts are properly
appointed where complex scientific issues are involved, such as determining what the
concentration levels of environmental tobacco smoke (ETS) are in a prison and

2

Plaintiff should be aware that a federal court has no authority to require attorneys to represent
indigent litigants in civil cases under 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist.
of Iowa, 490 U.S. 296, 298 (1989). Rather, when a Court “appoints” an attorney, it can do so only if the
attorney voluntarily accepts the assignment. Id.
MEMORANDUM DECISION AND ORDER - 3

determining the health effects of ETS on nonsmoking prisoners. McKinney v. Anderson,
924 F.2d 1500 (9th Cir. 1991), vacated on other grounds by Heiling v. McKinney, 502
U.S. 903 (1991). However, courts have recognized that “[r]easonably construed, Rule 706
does not contemplate the appointment of, and compensation for, an expert to aid one of
the parties.” See, e.g., Gamez v. Gonzalez, 2010 WL 2228427, *1 (E.D.Cal. June 3,
2010) (internal quotations, punctuation and citations omitted). In other words, the
principal purpose of a court-appointed expert is to assist the trier of fact from a position of
neutrality, not to serve as an advocate.
At issue in this matter is whether prison medical staff were deliberately indifferent
to Plaintiff’s back, leg, and knee pain and other medical problems. The issue of deliberate
indifference regarding these medical issues is not so complicated and difficult that an
expert is required to present or prove the case. Moreover, the facts at issue in this matter
are not scientifically complex like the facts at issue in McKinney. The Court will not
appoint a Rule 706 expert witness.
Nothing prevents a party from obtaining his own expert witness at his own cost to
aid him in his case. Fed. R. Evid. 706(d). Plaintiff is free to obtain an outside expert
opinion to support his case at his own expense or on a contingency basis without a court
order.

MEMORANDUM DECISION AND ORDER - 4

DISCOVERY MOTIONS
Next, Plaintiff brings two discovery motions, one a motion to compel and the other
a motion for the Court to issue subpoenas. With the limited exception that the Court will
order Defendants to make arrangements to show Plaintiff his x-rays or other medical
imaging, if he still wishes to see them, these motions will be denied.
1.

General Standards Governing Discovery

Federal Rule of Civil Procedure 26(b) allows “[p]arties [to] obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense . . . .”
The term “relevant” is further defined as information that is “reasonably calculated to
lead to the discovery of admissible evidence,” and it “need not be admissible at the trial.”
Fed. R. Civ. P. 26(b)(1).
Although relevance has a broad meaning, district courts are given wide discretion
to apply the discovery rules in a way that will achieve the policy of the Federal Rules of
Civil Procedure; namely, to “secure the just, speedy, and inexpensive determination of
every action and proceeding.” Fed. R. Civ. P. 1.
2.

Motion to Compel

In this motion, Plaintiff requests an order from the Court requiring Defendants to
disclose the names and addresses of three former employees, copies of Plaintiff’s x-rays,
and a book or pamphlet titled, “Standards of Health Care for Prisons.” (Dkt. 24, pp. 2-3.)
Based on information provided by Plaintiff and Defendants in later filings, it appears that
Plaintiff has since obtained the employees names and addresses and that Defendants have
MEMORANDUM DECISION AND ORDER - 5

sent him a copy of the book. (Motion for Subpoenas, Dkt. 29; Dkt. 25, p. 6.) As a result,
Plaintiff’s motion as to these matters is moot.
With respect to production of the x-rays, Defendants assert that they have provided
Plaintiff with a complete copy of his medical records, including all x-ray reports, but have
declined to provide Plaintiff with his own copy of the original film because it would be
cost prohibitive to reproduce. (Dkt. 25, pp. 4-5.) Defendants have also offered to make
the x-rays available for inspection if Plaintiff is able to secure an expert to review them.
(Id.)
The Court agrees with Defendants that producing separate copies of x-rays or
MRIs (if they exist) is unnecessary, particularly because Plaintiff has been given medical
records that apparently include the relevant reports. To the extent that Plaintiff seeks his
own copies, then, the Court will deny his motion. But the Court will order Defendants to
make arrangements to show Plaintiff the x-ray or MRI film at a mutually convenient time,
at Plaintiff’s option, without requiring the production of copies for his personal records.
2.

Motion for Subpoenas

Plaintiff next requests that the Court issue subpoenas for five non-party witnesses.
(Dkt. 29.) Three of these individuals are former employees at ICC and two are physicians
who have treated Plaintiff.3 (Dkt. 29, pp. 1-2.) To the extent that Plaintiff wishes to
subpoena the individuals to be witnesses at a jury trial, his request is premature. The

3

Plaintiff has withdrawn his request to subpoena Dr. Jorgenson, a non-treating physician, as an
expert witness. (Dkt. 38, p. 1.)
MEMORANDUM DECISION AND ORDER - 6

dispositive motions deadline has not yet passed, and Defendants indicate that they intend
to file a dispositive motion.
Plaintiff also states that he wants to depose these non-party witnesses as part of the
discovery process, but he concedes that he cannot afford the cost of oral depositions and
can only get the witnesses to testify under oath by deposing them through written
questions. (Dkt. 29, p.1; Dkt. 38, p. 2.) While Rule 31 of the Federal Rules of Civil
Procedure authorizes the taking of a deposition by written questions, the party noticing
the deposition is required to give questions to an “officer,” as that term is defined in Rule
28(a), who will then take the deponent’s responses to the questions, certify them, and
send them to the noticing party. Fed. R. Civil P. 30(b)(5); Fed. R. Civil P. 31(b). Plaintiff
has not shown that he has arranged for a deposition officer to complete these tasks, and
Defendants have not indicated that they are willing to stipulate that plaintiff may depose
the individuals in some manner not requiring the participation of an officer.
Moreover, indigent status does not waive payment of the costs and fees associated
with discovery, such as the costs and fees for non-parties to respond to subpoenas and to
participate in depositions. See, e.g., Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989).
DEFENDANTS’ MOTION TO STRIKE
Defendants ask the Court to strike an affidavit from the record that Plaintiff
submitted at the same time that he filed his motions for counsel, an expert, and
subpoenas. It is not clear whether Plaintiff intended for the affidavit to support any of
those motions or whether he intended for it to support or amend claims in the Amended
MEMORANDUM DECISION AND ORDER - 7

Complaint. If it is the latter, it is not authorized by relevant rules and procedures, and it
will not be considered, but the Court will not order the affidavit to be stricken from the
record.
ORDER
IT IS ORDERED:
1.

Plaintiff’s Motion to Compel Discovery (Dkt. 24) is DENIED, but
Defendants shall make arrangements for Plaintiff to view x-ray or MRI film
or images in their possession at a convenient time at the prison, if Plaintiff
wishes to view them, without producing copies for his personal records.

2.

Plaintiff’s Motion to Appoint Counsel (Dkt. 26) is DENIED without
prejudice.

3.

Plaintiff’s Motion to Appoint Expert Witness (Dkt. 28) is DENIED without
prejudice.

4.

Plaintiff’s Motion for Subpoenas (Dkt. 29) is DENIED. Insofar as it
pertains to subpoenaing witnesses for trial, it is denied without prejudice as
premature.

5.

Plaintiff’s Motion to Dismiss Claim of Enlarged Heart (Dkt. 30) is
GRANTED.

6.

Defendants’ Motion to Strike Affidavit of Dennis A. Orr (Dkt. 34) is
DENIED.

7.

In light of the Court’s rulings on these matters, the dispositive motions

MEMORANDUM DECISION AND ORDER - 8

deadline contained in the Court’s Scheduling Order (Dkt. 23) shall be
extended to December 1, 2011.

DATED: November 1, 2011

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER - 9