Burd v. Dr. Kohut

Filing 63

ORDER. Mr. Burd's Motion to Ask the Court to Appoint Counsel & Expert 49 is DENIED. Briefing on Defendants motion for summary judgment is STAYED.Within thirty days of the date of this Order, the parties shall file a status report. Signed by Magistrate Judge John Johnston on 7/28/2017. Mailed to Burd. (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
SHANE LOUIS BURD,

CV 16-00088-H-DLC-JTJ

Plaintiff,
vs.

ORDER

DOCTOR KOHUT,
Defendant.
Pending before the Court is Plaintiff Shane Burd’s Motion to Ask the Court
to Appoint Counsel and Expert (Doc. 49) and Defendant’s Motion for Summary
Judgment (Doc. 53). The motion for appointment of counsel and an expert will be
denied. Due to issue regarding Mr. Burd’s access to his legal materials at the
prison, the briefing on the motion for summary judgment will be stayed.
I. MOTION FOR APPOINTMENT OF COUNSEL & EXPERT
This is Mr. Burd’s second motion for the appointment of counsel. His first
motion (Doc. 19) was denied by Order dated May 22, 2017 (Doc. 43).1 In his

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Defendant indicated in his response to Mr. Burd’s motion that the Court
“recommended denial” of the prior motion for appointment of counsel. (Doc. 57 at
2.) Although there were other recommendations made in the May 22, 2017 Order
and Findings and Recommendations, the denial of counsel was done by Order and
is not subject to the objection process under 28 U.S.C. §636(b)(1). (Doc. 43 at 13.)
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current motion, Mr. Burd argues that the need for expert testimony is essential
because he is indigent and cannot afford to hire an expert. He also argues that the
importance of expert testimony is one of the factors that supports the appointment
of counsel. He submits that only a qualified person can explain his medical
conditions to a jury and the court because his physical issues are confusing and
conflicting and he is subject to questions by Defendant’s counsel that he is not
qualified to answer. He argues that appointment of an expert may avoid a “wholly
one-sided presentation of opinions on these issues.” (Doc. 49.)
Mr. Burd brings his motion under Rule 706 of the Federal Rules of
Evidence. Under Rule 706, experts are properly appointed in the court’s discretion
to assist the trier of fact in evaluating contradictory or complex evidence. Walker
v. Am. Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir.
1999) (independent expert appointed to assist court in evaluating conflicting
evidence of elusive disease of unknown origin); McKinney v. Anderson, 924 F.2d
1500, 1510–11 (9th Cir. 1991) (noting court’s discretion to appoint expert in case
involving complex scientific issues concerning effects of secondary cigarette
smoke), vacated on other grounds, Helling v. McKinney, 502 U.S. 903 (1991).
Appointment of an expert witness may generally be appropriate when “scientific,
technical, or other specialized knowledge will assist the trier of fact to understand
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the evidence or decide a fact in issue . . . ” Levi v. Dir. of Corr., 2006 U.S. Dist.
LEXIS 18795, *2, 2006 WL 845733 (E.D. Cal. 2006) (citation omitted).
Appointment of an expert 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);
Trimble v. City of Phoenix Police Dept., 2006 U.S. Dist. LEXIS 13061, *6, 2006
WL 778697 (D. Ariz. 2006) (citation omitted).
Mr. Burd has not shown issues of requisite complexity requiring
appointment of an expert witness to assist the trier of fact. To prevail on his Eighth
Amendment deliberate indifference claim, Mr. Burd must show that Defendant
acted with deliberate indifference to his serious medical needs. See Estelle v.
Gamble, 429 U.S. 97, 104 (1983). In the context of such a claim, “the question of
whether the prison officials displayed deliberate indifference to [Burd’s] serious
medical needs [does] not demand that the jury consider probing, complex questions
concerning medical diagnosis and judgment.” Torbert v. Gore, 2016 WL 3460262,
at *2 (quoting Levi, 2006 WL 845733, at *1). Rather, the Court and, if necessary,
the jury will need to consider Dr. Kohut’s subjective knowledge of any risks to Mr.
Burd’s health. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2002).
Further, the determination of whether Mr. Burd’s medical needs are
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sufficiently “serious” to amount to an Eighth Amendment violation will depend on
Mr. Burd’s subjective testimony regarding his conditions, the pain he suffers from,
and how his conditions impact his daily life. See McGuckin v. Smith, 974 F.2d
1050, 1059–60 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v.
Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (“The existence of an injury that a
reasonable doctor or patient would find important and worthy of comment or
treatment; the presence of a medical condition that significantly affects an
individual's daily activities; or the existence of chronic and substantial pain are
examples of indications that a prisoner has a ‘serious' need for medical treatment.”)
The assistance of an expert witness would be unnecessary under these
circumstances.
Mr. Burd appears to make this request for his own assistance, which is
outside the scope of Rule 706. The Court does not find the issues presented in this
case to be sufficiently complex, thereby necessitating an expert. In addition, as
Defendant points out, Mr. Burd’s request is untimely. Discovery in this matter has
ended and the appointment of an expert would require re-opening of discovery.
Similarly, for the reasons set forth the May 22, 2017 Order, Mr. Burd has
not shown the exceptional circumstances to justify a request for counsel. He has
demonstrated his ability to litigate this matter without counsel and he has not yet
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shown a likelihood of success on the merits.
The motion for appointment of an expert and for appointment of counsel
will be denied.
II. MOTION FOR SUMMARY JUDGMENT
Defendant filed a motion for summary judgment on June 29, 2017. (Doc.
53.) By Notice filed July 12, 2017, counsel for Defendant advised the Court that
Mr. Burd’s service copy of the motion for summary judgment which was sent to
Montana State Prison (MSP) was returned in the mail with a notation that “inmate
no longer here.” (Doc. 60.) Court mail sent to Mr. Burd at MSP on June 28, 2017,
was returned to the Court as undeliverable with the same notation on July 11, 2017.
(Doc. 59.) Counsel is working with staff at MSP to resolve this issue because Mr.
Burd is still at MSP but has been placed on a “Behavior Management Plan” since
June 24, 2017, which has hindered his access to his legal materials. Counsel asks
that the briefing schedule on the motion for summary judgment be vacated and a
date set for a status report.
As it is not even clear that Mr. Burd has received a copy of the motion for
summary judgment, Defendant’s request will be granted. The parties will be
required to file a status report regarding Mr. Burd’s access to his legal materials
within thirty days of the date of this Order. Once Mr. Burd has access to his legal
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materials, the Court will set a date by which he must respond to Defendant’s
motion for summary judgment.
Based upon the foregoing, the Court issues the following:
ORDER
1. Mr. Burd’s Motion to Ask the Court to Appoint Counsel & Expert (Doc.
49) is DENIED.
2. Briefing on Defendant’s motion for summary judgment is STAYED.
Within thirty days of the date of this Order, the parties shall file a status report
regarding Mr. Burd’s access to his legal materials.
3. At all times during the pendency of this action, Mr. Burd must
immediately advise the Court and opposing counsel of any change of address and
its effective date. Failure to file a notice of change of address may result in the
dismissal of the action for failure to prosecute pursuant to Federal Rule of Civil
Procedure 41(b).
DATED this 28th day of July 2017.
/s/ John Johnston
John Johnston
United States Magistrate Judge

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