Moore v. Mann et al

Filing 102

MEMORANDUM ORDER re: 96 MOTION to Appoint Expert filed by Brian C Moore. IT IS ORDERED that the plaintiff's motion for appointment of an expert witness, is DENIED without prejudice. Signed by Magistrate Judge Martin C. Carlson on October 13, 2017. (kjn)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BRIAN MOORE,

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Plaintiff,
v.
ANGELA MANN, et al.,
Defendants.

CIVIL NO. 3:13-CV-2771
(Judge Brann)

(Magistrate Judge Carlson)

MEMORANDUM ORDER1
I.

Factual Background

This is a pro se prisoner civil rights action brought by a state prisoner which is
currently proceeding against six correctional defendants on a single legal claim, an
Eighth Amendment failure to protect claim. (Doc. 53.) This Eighth Amendment
failure to protect claim stems out of remarks that Moore alleges the correctional
officers made in the presence of others in the Fall of 2011, identifying Moore as both
a snitch and a pedophile, remarks which Moore alleges placed him at grave risk of
physical harm.

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The parties are advised that, pursuant to 28 U.S.C. § 636, the district court
has orally referred the above-captioned case to the undersigned for pre-trial
management, resolution of non-dispositive motions, and preparation of reports and
recommendations on potentially dispositive matters.
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There is a pending motion to appoint an expert witness filed in this case by
Moore. (Doc. 96.) Moore apparently wishes to have the court appoint an expert
witness, who would be compensated presumably by the court, to assist Moore in
presenting his claims at trial.
II.

Discussion

This motion will be DENIED, without prejudice, for the reasons set forth
below:
First, the motion is premature. There is no trial date scheduled in this case. This
matter is still in pre-trial discovery, and a November 2017 dispositive motions
deadline has been set by the court. Until we have had the opportunity to consider and
assess any potential dispositive motion it would be premature to appoint any trial
expert.
Second, the motion apparently stems from the premise that Moore believes he
is entitled to the appointment of expert witnesses at no expense to himself to assist
him in his presentation of this case at trial. On this score Moore errs. Nothing in 28
U.S.C. § 1915, the statute governing in forma pauperis litigation, authorizes federal
courts to finance or pay for a party’s litigation expenses incurred while prosecuting
a lawsuit, even if that party has been granted leave to proceed in forma pauperis under
28 U.S.C. § 1915(a). Review of the case law reveals that numerous courts within and
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without the Third Circuit have recognized the limitations of federal courts to relieve
indigent litigants from the costs of discovery or litigation of claims. See, e.g., Brooks
v. Quinn, 257 F.R.D. 515, 417 (D. Del. 2009) (“Although plaintiff is proceeding in
forma pauperis, the court has no authority to finance or pay for a party’s discovery
expenses. . . . It is plaintiff’s responsibility to pay for the costs associated with the
taking of a deposition.”); Augustin v. New Century TRS Holding, Inc., No. 08-326,
2008 U.S. Dist. LEXIS 96236, at *7-9 (W.D. Pa. Nov. 25, 2008) (denying plaintiff’s
IFP application to cover costs for discovery requests); Badman v. Stark, 139 F.R.D.
601, 605 (M.D. Pa. 1991) (28 U.S.C. § 1915 does not require the government to
advance funds for deposition expenses); Toliver v. Community Action Comm’n to
Help the Econ., 613 F. Supp. 1070, 1072 (S.D.N.Y. 1985) (no clear statutory authority
for the repayment of discovery costs for IFP plaintiff); Sturdevant v. Deer, 69 F.R.D.
17, 19 (E.D. Wis. 1975) (concluding that 28 U.S.C. § 1915 “does not extend to the
cost of taking and transcribing a deposition.”); Ebenhart v. Power, 309 F. Supp. 660,
661 (S.D.N.Y. 1969) (“Grave doubts exist as to whether [28 U.S.C. § 1915] authorizes
this court to order the appropriation of Government funds in civil suits to aid private
litigants in conducting pre-trial discovery.”); see also Tabron v. Grace, 6 F.3d 147,
159 (3d Cir. 1993) (“There is no provision in [28 U.S.C. § 1915] for the payment by
the government of the costs of deposition transcripts, or any other litigation expenses,
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and no other statute authorizes courts to commit federal monies for payment of the
necessary expenses in a civil suit brought by an indigent litigant.”). This rule also
applies to expert witness requests like those made here, where it is well-settled that:
“Even were an expert witness necessary, ‘pro se inmates proceeding in forma pauperis
must pay for the expenses involved in their civil actions,’ and plaintiff has provided
no indication that he has the ability to pay such costs. See Boring v. Kozakiewicz, 833
F.2d 468, 474 (3d Cir.1987) (finding no authority for court to pay for expert witnesses
of pro se plaintiff proceeding in forma pauperis).” Stones v. McDonald, 7 F. Supp. 3d
422, 432 (D. Del.), aff'd, 573 F. App'x 236 (3d Cir. 2014). Thus, as a general rule, the
Court lacks the lawful authority to help finance, or relieve Plaintiff from the costs
associated with retaining an expert witness.
Finally, “Although the court has broad discretion to appoint an independent
expert under Rule 706, ‘[t]he policy behind the rule is to promote the jury's factfinding
ability.’ Ford v. Mercer Cnty. Corr. Ctr., 171 Fed.Appx. 416, 420 (3d Cir.2006)
(unpublished). ‘ “The most important factor in favor of appointing an expert is that the
case involves a complex or esoteric subject beyond the trier-of-fact's ability to
adequately understand without expert assistance.” ’ Id. (citation omitted). Thus, ‘[a]
trial judge does not abuse his [or her] discretion in declining to appoint an independent
expert’ if it determines that the expert is ‘solely to benefit a party who has otherwise
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failed to gather such evidence as would suffice to’ prove his claims. Id. Moreover,
Rule 706 is not intended to ensure that indigent plaintiffs have access to expert
witnesses in order to make their case.” Stones v. McDonald, 7 F. Supp. 3d 422,
431–32 (D. Del.), aff'd, 573 F. App'x 236 (3d Cir. 2014). Judged by these standards,
Moore has not made the showing necessary to secure the appointment of an expert
under Rule 706, and in the exercise of our discretion this request will be denied
without prejudice.
An appropriate order follows:
III.

Order

Accordingly, for the foregoing reasons, IT IS ORDERED that the plaintiff's
motion for appointment of an expert witness, (Doc. 96) is DENIED without prejudice.
So ordered this 13th day of October, 2017.
/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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