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Azhar Lal v. Felker

October 18, 2012

AZHAR LAL, PLAINTIFF,
v.
FELKER, ET AL., DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Defendants initially filed a motion for summary judgment on May 25, 2012. Dckt. No. 153. On August 20, 2012, the court denied defendants' motion without prejudice in light of the recent decision of Woods v. Carey, 684 F.3d 934 (9th Cir. 2012). Dckt. No. 163. Plaintiff had not yet filed an opposition to the summary judgment motion. On August 29, 2012, defendants re-filed and re-served their summary judgment motion, along with the notice to plaintiff required by Woods. Dckt. No. 166. Plaintiff has filed several motions in response. For the reasons stated below, plaintiff's motions must be denied, except that the court will grant plaintiff one 30-day extension of time to oppose the summary judgment motion.

I. Plaintiff's Objection to Defendants' Expert on Summary Judgment and Request to Exceed 50-Page Limit on Photocopies

Defendants' motion for summary judgment includes the declaration of Bruce P. Barnett, M.D. Dckt. No. 168-8. Plaintiff argues that defendants are not allowed to rely on the declaration because "expert opinions are inadmissible under the Supreme Court's Daubert test . . . ."Dckt. No. 172 at 1 (citing Ruffin v. Shaw Industries, Inc., 149 F.3d 294 (4th Cir. 1998)).

Ruffin discussed the factors a court is to consider when determining whether to admit scientific testimony. After considering those factors as to the plaintiffs' proposed expert testimony, including those set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the court concluded that the proposed testimony was inadmissible. Ruffin, 149 F.3d at 300. The court did not create a blanket rule, as plaintiff suggests, that expert opinions are improper on summary judgment. Rather, courts frequently rely on expert testimony in resolving summary judgment motions, and the Federal Rules of Evidence contemplate the same. See Fed. R. Evid. 702, 703. Plaintiff's motion, which fails to demonstrate that Barnett is not qualified to offer an expert opinion or that his opinion is not reliable, must be denied.

Plaintiff also requests an orderdirecting the prison librarian to provide him with copies in excess of 50 pages so that he can adequately respond to defendants' 898-page summary judgment motion (including exhibits). Plaintiff admits to bypassing proper prison procedures in making this request. See Dckt. No. 172 at 4 (explaining that instead of submitting his opposition to the librarian with a reason for "why [the] motion is going to exceed 50 pages," as directed, he "ask[s] the Court to save [him] this trouble.").

A court order is not necessary at this time and plaintiff's request for a court order allowing copies in excess of 50-pages will therefore be denied. Plaintiff may obtain the requested copies if he complies with the librarian's instructions and properly requests copies in excess of 50 pages. Even if plaintiff's request is denied, he may overcome the 50-page copy limit by separating the pages of his opposition into sets of 50 pages or less.The court notes, however, that the volume of exhibits submitted with defendants' motion should not be a barrier to plaintiff's ability to file an opposition brief (including exhibits), that does not exceed 50 pages in length. Plaintiff need not reproduce copies of defendants' exhibits with his opposition. Rather, plaintiff may rely on any previously submitted exhibits so long as he adequately cites to where those exhibits can be located in the record.

II. Plaintiff's Motion for Appointment of Expert

Plaintiff requests that the court appoint "an expert in order to refute respondent's expert" or as a "neutral expert" for purposes of summary judgment. Dckt. No. 173. Plaintiff previously requested appointment of an expert solely for his benefit, which the court denied. Dckt. No. 163.

Under Federal Rule of Evidence 706, a district court has discretion to appoint an expert witness. Fed. R. Evid. 706(a). Appointment of an expert under Rule 706 relieves the court and the jury from being "completely at the mercy of the parties' warring experts," and thus, only allows for the appointment of a expert who is a "genuine neutral." In re High Fructose Corn Syrup Antitrust Litigation, 295 F.3d 651, 665 (7th Cir. 2002).

While plaintiff now requests a "neutral expert," the court does not find that appointment of a neutral expert is needed to resolve defendants' motion. See Ford v. Long Beach Unified Sch. Dist., 291 F.3d 1086, 1090 (9th Cir. 2002); Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999). Moreover, plaintiff's pro se and in forma pauperis status do not entitle him to appointment of an expert. See Tedder v. Odel, 890 F.2d 210 (9th Cir. 1989); see also Moran v. Dovey, No. 1:08-cv-0016 GBC, 2012 U.S. Dist. LEXIS 75691, at *2-3 (E.D. Cal. May 31, 2012) (denying plaintiff's request for appointment of expert witness, noting the court's "burgeoning docket of civil rights cases filed by prisoners proceeding pro se and in forma pauperis," and that "[t]he facts of this case are no more extraordinary and the legal issues involved no more complex than those found in the majority of the cases now pending before the Court."). Plaintiff's request for appointment of an expert is denied.

III. Plaintiff's Request for a 60-day Extension of Time to Oppose Defendants' Summary Judgment Motion

Plaintiff requests a 60-day extension of time to "adequately respond" to defendants' summary judgment motion. Dckt. No. 176. Plaintiff has been on notice of defendants' motion since May 25, 2012, when it was originally filed. Dckt. No. 153. Plaintiff does not explain what efforts, if any, he has made toward preparing an opposition brief or why, besides his alleged inability to obtain copies in excess of 50 pages, he requires an additional 60 days to oppose the motion.

The court will grant plaintiff a 30-day extension of time. Absent good cause, the court does not intend to grant additional ...


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