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Mora v. Salahuddin

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 27, 2009

RAMON MORA, PLAINTIFF,
v.
S. SALAHUDDIN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF EXPERT WITNESS, ENTITLED MOTION TO AMEND OR SUPPLEMENT COMPLAINT, WITHOUT PREJUDICE AS PREMATURE

(Doc. 10)

This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Plaintiff Ramon Mora , a state prisoner proceeding pro se and in forma pauperis. On August 21, 2009, Plaintiff filed a motion seeking the appointment of an expert witness, entitled as a motion to amend or supplement his complaint. Plaintiff's request is properly brought as a separate motion for the appointment of an expert witness. It is unnecessary to amend or supplement the amended complaint to include the request.

The Court has the discretion to appoint an expert pursuant to Rule 706(a) of the Federal Rules of Evidence, which reads, in part, "[t]he court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed . . . ." Fed. R. Evid. 706(a); Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999). Pursuant to Rule 702, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Fed. R. Evid. 702.

The function of an expert witness is to assist the trier of fact in understanding the evidence. At this early stage in the proceedings, Plaintiff's motion is premature. Plaintiff may re-file his motion at such time as there is evidence before the Court requiring interpretation (e.g., a pending motion for summary judgment or a trial date). Until that time, any motion for the appointment of an expert is premature.

Accordingly, Plaintiff's motion for the appointment of an expert witness, filed August 21, 2009, is HEREBY DENIED, without prejudice, as premature.

IT IS SO ORDERED.

20090827

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