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Henderson v. Felker

United States District Court, Ninth Circuit

May 9, 2013

DARREN HENDERSON, Plaintiff,
v.
T. FELKER, et al., Defendants.

ORDER DENYING APPOINTMENT OF A SECOND EXPERT, AND FINDINGS AND RECOMMENDATIONS FOR DENIAL OF PRELIMINARY INJUNCTION

EDMUND F. BRENNAN, District Judge.

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. ยง 1983. Currently pending before the court are plaintiff's motions for appointment of an "expert of corrections" and for a preliminary injunction.

I. Background

This action proceeds on the verified amended complaint filed October 4, 2006. Dckt. No. 16. Claims currently remaining in the action are plaintiff's claims that defendants Dovey, Felker, and Roche executed and enforced unconstitutional policies pertaining to the treatment of diabetic inmates. Dckt. No. 56 at 2.[1] (Plaintiff's claims against other defendants and his claim against defendant Roche for alleged failure to provide medication have been dismissed. Id. )

Specifically, plaintiff alleges that defendant Dovey is the Director of Corrections for the state of California and is responsible for "the overall operations" of each California prison, including High Desert State Prison ("HDSP"), where plaintiff was confined at the time he filed this action. Dckt. No. 16 at 1-2. Defendant Felker is the "superintendent" of HDSP and is responsible for its operations and the welfare of its inmates. Id. at 2. Defendant Roche is a medical doctor who was the Chief Medical Officer at HDSP at all times relevant to the complaint. Id.

According to plaintiff, defendants adopted or enforced policies that were deliberately indifferent to his serious medical needs as a diabetic inmate. Plaintiff describes his condition as follows:

Plaintiff is an insulin depended [sic] diabetic with related complications, high blood pressure, a condition called neuropathy which causes poor blood flow, pain and numbness in the legs and feet. It also places me at high risk for heart disease, stroke, infection and amputation. Because of my condition I require daily access to a exercise yard [sic] to walk or run to increase the blood flow to my heart and legs. I also require effective distribution of medications that improve and sustain quality in life, a special diet prepared by a medically trained dietician, and a emergency plan [sic] to prevent hypoglycemia while traped [sic] in a cell overnight.

Id. at 3. Plaintiff alleges that he received such treatment in a prior institution but that, when he was transferred to HDSP on August 11, 2005, the needed treatments (exercise, medication, diet, and emergency plan) were stopped according to a screening policy in place at HDSP. Id. His prescriptions for blood pressure and pain medication were discontinued. Id. No special diet was provided, nor any emergency snack, because HDSP, per policy, does not provide special diets or emergency snacks to diabetic inmates. Id. at 3-4. Further, HDSP policy only allowed inmates to access the yard for 1.5 to 2 hours five times per month. Id. at 4.

After complaining, plaintiff was seen by a doctor who prescribed blood pressure and pain medication (enalapril and neurontin, respectively). Id. Plaintiff received the enalapril on August 26, 2005. Id. Plaintiff received the neurontin on September 5, 2005, but was only given enough for one month. Id. at 5. He had to wait over 30 days for a refill, suffering pain in his legs and feet. Id.

Plaintiff alleges that he developed an infection on one of his toes because of the lack of exercise to increase blood flow to his legs and feet. Id. at 6.

In sum, in the claims remaining in this action, plaintiff alleges that defendants are responsible for several policies, which together prevented him from receiving adequate treatment for his diabetes: (1) a policy to discontinue medications upon an inmate's transfer to HDSP; (2) a policy resulting in the erratic distribution of neurontin; (3) a policy to deny diabetic inmates a special diabetic diet; (4) a policy of inadequate yard-time for diabetic inmates; and (5) a policy depriving diabetic inmates of an emergency snack to treat hypoglycemia.

II. Motion for Second Expert

The court is in the process of appointing a neutral expert in the treatment of diabetes to assist the court in determining certain issues raised by defendants' motion for summary judgment. Dckt. No. 148. Plaintiff asks that the court appoint a second expert in the field of corrections "so that the bases of the expert's opinion concerning out-of-cell exercise is supported by real data." Dckt. No. 157.

Federal Rule of Evidence 706 authorizes the court to appoint an expert witness and apportion the fee among the parties. Where, as here, one party is indigent, the court has discretion to apportion the entire fee to the other side. McKinney v. Anderson, 924 F.2d 1500, 1511 (9th Cir. 1991), vacated and remanded on other grounds by Helling v. McKinney, 502 U.S. 903 (1991). For the reasons provided below, the court concludes that ...


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