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Foster v. Ugwueze

United States District Court, E.D. California

April 17, 2015

MICHAEL L. FOSTER, Plaintiff,
v.
GODWIN UGWUEZE, et al., Defendants.

FINDINGS AND RECOMMENDATIONS TO: 1) DENY PLAINTIFF'S MOTION FOR APPOINTMENT OF EXPERT WITNESS (ECF NO. 33) 2) DENY DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF NO. 29) 3) GRANT PLAINTIFF'S MOTION FOR EXTENSION OF TIME NUNC PRO TUNC (ECF NO. 34) 4) GRANT DEFENDANT'S MOTION FOR EXTENSION OF TIME NUNC PRO TUNC (ECF NO. 38) 5) GRANT PLAINTIFF'S MOTION FOR ADDITIONAL DISCOVERY (ECF NO. 32) FOURTEEN (14) DAY OBJECTION DEADLINE

MICHAEL J. SENG, Magistrate Judge.

I. PROCEDURAL HISTORY

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. ยง 1983. The action proceeds against Defendants Ugwueze and Enenmoh on Plaintiff's Eighth Amendment inadequate medical care claim. (ECF No. 15.)

Before the Court is Defendant's motion for summary judgment. (ECF No. 29.) Plaintiff opposed the motion (ECF No. 36.) and Defendants filed a reply (ECF No. 39.). Both parties filed motions for extensions of time. (ECF Nos. 34 & 38.) Plaintiff filed motions for additional discovery and appointment of an expert. (ECF Nos. 32 & 33.) Defendants did not respond. These matters are deemed submitted. Local Rule 230 ( l ).

II. MOTION FOR APPOINTMENT OF AN EXPERT

Plaintiff seeks an expert to assist him in proving that Defendants acted with medical indifference.

An expert witness may testify to help the trier of fact understand the evidence or determine a fact at issue. Fed.R.Evid. 702. Under Rule 706(a) of the Federal Rules of Evidence, the Court has discretion to appoint a neutral expert on its own motion or on the motion of a party. Fed.R.Evid. 706(a); Walker v. Am. Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir.1999). Rule 706 does not contemplate court appointment and compensation of an expert witness as an advocate for Plaintiff. See Gamez v. Gonzalez, No. 08cv1113 MJL (PCL), 2010 WL 2228427, at *1 (E.D. Cal. June 3, 2010) (citation omitted).

The appointment of an independent expert is to assist the trier of fact, not a particular litigant. See Joe S.Cecil & Thomas E. Willging, Court-Appointed Experts, at 538 (Fed. Jud. Center 1994) (Rule 706 is meant to promote accurate fact finding where issues are complex, esoteric and beyond the ability of the fact finder to understand without expert assistance). Here, Plaintiff requests an independent expert to establish an element of his case. Rule 706 does not exist to assist a party.

Appointment of an independent expert under "Rule 706 should be reserved for exceptional cases in which the ordinary adversary process does not suffice." In re Joint E. & S. Dists. Asbestos Litig., 830 F.Supp. 686, 693 (E.D.N.Y. 1993) (allowing appointment of independent expert in mass tort case). This case is not such an exceptional case.

III. MOTION FOR SUMMARY JUDGMENT

A. Legal Standard

Any party may move for summary judgment, and "[t]he [C]ourt shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed R. Civ. P. 56(c)(1).

"Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). If the burden of proof at trial rests with the nonmoving party, then the moving party need only point to "an absence of evidence to support the nonmoving party's case." Id. Once the moving party has met its burden, the nonmoving party must point to "specific facts showing that there is a genuine issue for trial." Id. ( quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)).

In evaluating the evidence, "the [C]ourt does not make credibility determinations or weigh conflicting evidence, " and "it draws all inferences in the light most favorable to the nonmoving party." Id.

B. Factual Background

Defendant Ugwueze was the primary care physician for Plaintiff, an inmate at the California Substance Abuse Treatment Center in Corcoran, California ("CSATC").

In 2009, Plaintiff had surgery to remove a tumor in his parotid gland. On July 27, 2010, Defendant Ugwueze saw Plaintiff for his parotid gland condition. Plaintiff's medical records indicate that Plaintiff had "Post Parotidectomy no sign of local ...


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