United States District Court, E.D. California
CHARLES A. MILLER, Plaintiff,
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION,, Defendants.
ORDER DENYING MOTION FOR APPOINTMENT OF EXPERT
WITNESS TO ASSIST THE COURT WITH SCREENING OF PLAINTIFF'S
COMPLAINT (ECF No. 52.)
A. Miller ("Plaintiff") is a state prisoner
proceeding pro se with this civil rights action
pursuant to 42 U.S.C. § 1983. This action was initiated
by civil complaint filed by Plaintiff in the Fresno County
Superior Court on June 15, 2010 (Case #10CECG02100). On March
8, 2012, defendants Adonis, Griffith, Gutierrez, Igbinosa,
Medina, and Mendez ("Removing Defendants") removed
the case to federal court and requested the court to screen
the complaint under 28 U.S.C. § 1915A. (ECF Nos. 1, 2.)
On March 8, 2012, defendants California Department of
Corrections and Rehabilitation ("CDCR"), Ahmed,
Anderson, Chudy, Duenas, Eddings, Pascual, and Walker
("Consenting Defendants") joined in the Notice of
Removal of Action. (ECF No. 4.)
October 17, 2013, the Court dismissed the Complaint for
violation of Rule 8(a) of the Federal Rules of Civil
Procedure, with leave to amend. (ECF No. 32.) On December 2,
2013, Plaintiff filed the First Amended Complaint. (ECF No.
35.) On June 19, 2014, the Court issued an order striking the
First Amended Complaint for Plaintiff's failure to comply
with the Court's order of October 17, 2013. (ECF No. 40.)
Plaintiff was granted leave to file a Second Amended
Complaint. (Id.) On August 13, 2014, Plaintiff filed
the Second Amended Complaint. (ECF No. 44.)
Court screened the Second Amended Complaint pursuant to 28
U.S.C. § 1915A and issued an order on June 29, 2015,
requiring Plaintiff to either file a Third Amended Complaint
or notify the Court of his willingness to proceed on the
claims found cognizable by the Court. (ECF No. 46.) On July
31, 2015, Plaintiff filed the Third Amended Complaint, which
awaits the Court's screening. (ECF No. 49.)
March 9, 2016, Plaintiff filed a motion for the Court to
appoint an expert witness to assist the Court in screening
the medical claim in his Third Amended Complaint. (ECF No.
APPOINTMENT OF EXPERT WITNESS
Court has the discretion to appoint an expert pursuant to
Rule 706(a) of the Federal Rules of Evidence. In relevant
part, Rule 706 states that "[o]n a party's motion or
on its own, the court may order the parties 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, "a witness who is qualified
as an expert by knowledge, skill, experience, training or
education may testify in the form of an opinion or otherwise
if: (a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue . .
." Fed.R.Evid. 702. While the Court has the discretion
to appoint an expert and to apportion costs, including the
appointment of costs to one side, Fed.R.Evid. 706; Ford
ex rel. Ford v. Long Beach Unified School Dist., 291
F.3d 1086, 1090 (9th Cir. 2002); Walker, 180 F.3d at
1071, where the cost would likely be apportioned to the
government, the Court should exercise caution.
a party has filed a motion for appointment of a neutral
expert under Rule 706, the court must provide a reasoned
explanation of its ruling on the motion. Several factors
guide the court's decision. First, and most importantly,
the court must consider whether the opinion of a neutral
expert will promote accurate fact finding. The court may also
consider the ability of the indigent party to obtain an
expert and the significance of the rights at stake in the
case. Expert witnesses should not be appointed where they are
not necessary or significantly useful for the trier of fact
to comprehend a material issue in a case." Johnson
v. Cate, No. 1:10-CV-00803-AWI, 2015 WL 5321784, at *2
(E.D. Cal. Sept. 10, 2015) (citing Gorton v. Todd,
793 F.Supp.2d. 1171, 1178-84 (E.D.Cal. 2011)). The
determination to appoint an expert rests solely in the
court's discretion and is to be informed by such factors
as the complexity of the matters to be determined and the
court's need for a neutral, expert review. See
Ledford v. Sullivan, 105 F.3d 354, 358-59 (7th
requests the Court to appoint an impartial medical expert
witness (orthopedic surgeon, consultant, and/or specialist) -
pursuant to Rule 706 of the Federal Rules of evidence and
Gorton v. Todd, 793 F.Supp.2d 1171, 2001 (E.D. Cal.
2011), to assist the Court with the screening of his Third
Amended Complaint. Plaintiff argues that the medical claims
in his complaint are complex and an expert witness is needed
to show that his claims are not frivolous. Plaintiff argues
that an expert would assist the Court by providing "an
unbiased view of the potential merit of plaintiff's
medical care (and delay) claims in this case alleged in the
Third Amended Complaint." (ECF No. 52 at 2:4-5.)
Plaintiff suggests that Defendants should compensate the
appointed expert, pursuant to Rule 706(b). Plaintiff requests
the issuance of an order to show cause directed to
Defendants, requiring them to state any and all reasons why a
medical expert should not be appointed and why Defendants
should not be required to bear the costs.
noted above, "[e]xpert witnesses should not be appointed
where they are not necessary or significantly useful for the
trier of fact to comprehend a material issue in a case."
Johnson, 2015 WL 5321784, at *2 (citing
Gorton, 793 F.Supp.2d. 1171); Fed.R.Evid. 706.
Plaintiff's motion for the Court to appoint an expert
witness shall be denied because (1) in screening
Plaintiff's Third Amended Complaint, the Court will not
act as a trier of fact, and (2) an expert witness is not
necessary or useful to assist the Court in screening
Plaintiff's medical claim.
screening the complaint, the Court assumes the truth
of Plaintiff's well-pleaded factual allegations and then
determines whether the facts plausibly give rise to an
entitlement to relief. Ashcroft v. Iqbal, 556 U.S.
662, 664 (2009) (emphasis added). Thus, during screening of a
complaint, the Court ...