Conner v. Kirkegard et al
ORDER denying 48 Motion to Appoint Counsel ; denying 49 Motion for Reconsideration Signed by Magistrate Judge John Johnston on 1/25/2017. Mailed to Conner. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
ANDREW DAVID CONNER,
WARDEN LEROY KIRKEGARD, et al.,
Plaintiff Andrew Conner, an inmate proceeding in forma pauperis and
without counsel, filed a Motion for the Appointment of Counsel (Doc. 48) and an
Objection to the Court’s Denial of his Motion for Examination (Doc. 49), which
the Court has construed as a motion for reconsideration.
I. MOTION FOR APPOINTMENT OF COUNSEL
This is Mr. Conner’s second motion to appoint counsel. See (Doc. 26.) As
set forth in the Court’s Order denying the first motion, no one, including
incarcerated prisoners, has a constitutional right to be represented by appointed
counsel when they file a civil lawsuit under 42 U.S.C. § 1983. (Doc. 35 (citing
Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997)), withdrawn on other
grounds, 154 F.3d 952, 962 (9th Cir. 1998). A judge may only request counsel for
an indigent plaintiff under “exceptional circumstances.” 28 U.S.C. § 1915(e)(1);
Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).
A finding of exceptional circumstances requires an evaluation of both
‘the likelihood of success on the merits and the ability of the petitioner
to articulate his claims pro se in light of the complexity of the legal
issues involved.’ Neither of these factors is dispositive and both must
be viewed together before reaching a decision.
Terrell, 935 F.2d at 1017 (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th
Cir. 1986) (citations omitted). Mr. Conner still does not meet this criteria.
Citing an Eighth Circuit case, Mr. Conner argues that the Court should
consider the factual complexity of the case, his ability to investigate, the existence
of conflicting testimony, and Mr. Conner’s ability to present his case in light of the
complexity of the legal issues. (Doc. 48 at 4 (citing Abdullah v. Gunter, 949 F.2d
1032 at 1035 (9th Cir. 1991).).) As set forth above, however, in the Ninth Circuit,
the Court must consider Mr. Conner’s likelihood of success on the merits and his
ability to articulate his claims in light of the complexity of the legal issues. Terrell,
935 F.2d at 1017.
Mr. Conner has still not demonstrated a likelihood of success on the merits
or his inability to articulate his claims pro se. His filings are articulate and
demonstrate an understanding of the issues involved. The Court will not appoint
counsel at this point in the litigation.
II. OBJECTIONS TO DENIAL OF EXAMINATION
Mr. Conner has filed an objection to the Court’s January 10, 2017 Order
denying his Motion for Order for an Examination. (Doc. 49.) The Court construes
this filing as a motion for reconsideration and as such it will be denied.
The Local Rules for this Court require that a party must first move for leave
to file a motion for reconsideration before filing a motion for reconsideration. A
motion for leave to file a motion for reconsideration must specifically meet at least
one of the following two criteria:
(A) the facts or applicable law are materially different from the
facts or applicable law that the parties presented to the Court
before entry of the order for which reconsideration is sought,
(B) despite the exercise of reasonable diligence, the party
applying for reconsideration did not know such fact or law
before entry of the order; or
new material facts emerged or a change of law occurred after
entry of the order.
In his filing, Mr. Conner simply argues the merits of his request for medical
examinations. He has not shown a change in circumstances, that the facts or law
are materially different, or that new facts have emerged or a change of the law has
The Court construed Mr. Conner’s motion for an examination as a request
for the Court to appoint medical experts to assist Mr. Conner in this case. The
Court found that the issues presented in this case are not sufficiently complex to
necessitate appointing an expert under Rule 706 of the Federal Rules of Evidence.
(Doc. 46 at 2.) In his objection, Mr. Conner argues that he has a protected “liberty
interest” right to call expert witness on his behalf pursuant to Fed.R.Civ.P. 701
through 706. (Doc. 49 at 1-2.) Mr. Conner is free to hire and present expert
witnesses pursuant to Rule 702 of the Federal Rules of Evidence which provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and methods to
the facts of the case.
Fed.R.Evid. 701. He does not, however, have a liberty interest in having the Court
appoint an expert to assist him in this case.
As set forth in the Court’s prior Order, appointment of an expert under Rule
706 is not appropriate for the purpose of assisting a litigating party for his own
benefit. See Carranza v. Fraas, 763 F.Supp.2d 113, 119–20 (D.D.C. 2011);
Pedraza v. Jones, 71 F.3d 194, 198 n. 5 (5th Cir. 1995). Mr. Conner’s pro se, in
forma pauperis status is not grounds for the appointment of an expert witness to
assist him with his case. The expenditure of public funds on behalf of an indigent
litigant is proper only when authorized by Congress. See Tedder v. Odel, 890 F.2d
210 (9th Cir. 1989) (citations omitted). The in forma pauperis statute does not
authorize the Court to waive witness fees or expenses paid to those witnesses.
Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993). Rule 702 is not a means to avoid
section 1915 and the prohibition against using public funds to pay for the expenses
Mr. Conner has not met the requirements for filing a motion for
reconsideration and he states insufficient grounds to overrule the Court’s prior
Order. The Court will not appoint experts to assist Mr. Conner in this case.
Should Mr. Conner, however, be able to hire his own experts and he needs
assistance in having those experts examine him, he must first attempt to facilitate
those examinations with Defendants and then, if necessary, file a motion
specifically identifying his experts, the need for any such examination, and the
means by which those examinations could be done.
Based upon the foregoing, the Court issues the following:
1. Mr. Conner’s Motion for the Appointment of Counsel (Doc. 48) is
2. Mr. Conner’s Objection to the Court’s Denial of his Motion for
Examination (Doc. 49) as construed as a motion for reconsideration is DENIED.
DATED this 25th day of January 2017.
/s/ John Johnston
United States Magistrate
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?