United States District Court, S.D. California
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S
MOTION TO APPOINT COUNSEL AND EXPERT WITNESS [ECF NO.
William V. Gallo United States Magistrate Judge.
Keith Sekerke, proceeding pro se, brings this action
under 42 U.S.C. § 1983 alleging violations of his rights
under the Eighth and Fourteenth Amendments. Plaintiff now
moves for appointment of counsel and expert witness. For the
reasons set forth below, the Court DENIES both motions
Court has recited the facts and allegations of this case in
two recent orders. (See ECF Nos. 73, 78.) Thus, the
Court will simply note at this point that there has been
extensive litigation since Plaintiff filed his Complaint. In
the present motions, Plaintiff moves the Court to appoint
counsel and an expert witness on his behalf, claiming
exceptional circumstances exist to warrant the appointment of
counsel. (ECF No. 64 at 6:22-26.) However, Plaintiff does not
articulate the legal or factual basis for the appointment of
an expert witness on his behalf. Defendants timely filed a
Response in Opposition. (ECF No. 71.)
TO APPOINT COUNSEL
argues that good cause exists for the appointment of counsel.
Plaintiff claims that exceptional circumstance exist because
“disabilities” prevent him from understanding the
courts orders. (ECF No. 64 at 6:22-27.) Additionally,
Plaintiff claims the action is complex such that it creates
an exceptional circumstance because Plaintiff will need to
“investigate and adequately litigate” the state
of mind of Defendants including the taking of depositions.
(ECF No. 64 at 10:4-7.) Further, Plaintiff is claiming
documents are being withheld by the San Diego County
Sheriff's Department because an attorney needs to make
the request. (ECF No. 64 at 9:13-16.)
is no constitutional right to appointed counsel in a §
1983 action.” Rand v. Rowland, 113 F.3d 1520,
1525 (9th Cir. 1997) (partially overruled en banc on
other grounds). Thus, federal courts do not have the
authority “to make coercive appointments of
counsel.” Mallard v. U.S. Dist. Ct., 490 U.S.
296, 310 (1989); see also United States v. $292, 888.04
in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995).
Districts courts do have discretion, however, pursuant to 28
U.S.C. section 1915(e)(1), to request that an attorney
represent indigent civil litigants upon a showing of
exceptional circumstances. See Agyeman v. Corrections
Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004).
“A finding of the exceptional circumstances of the
plaintiff seeking assistance requires at least an evaluation
of the likelihood of the plaintiff's success on the
merits and an evaluation of the plaintiff's ability to
articulate his claims ‘in light of the complexity of
the legal issues involved.'” Agyeman, 390
F.3d at 1103 (quoting Wilborn v. Escalderon, 789
F.2d 1328, 1331 (9th Cir. 1986)); see also Terrell v.
Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).
arguments are not persuasive. At the outset, the Court notes
that Plaintiff has filed a First Amended Complaint, (ECF No.
42, ) which Defendants have Answered, (ECF No.
At this stage in the litigation, the Court is unable to
determine whether Plaintiff will succeed on the merits.
fails to elaborate as to what disability prevents him from
understanding court orders. The record indicates Plaintiff
indeed understands, and complies with, court orders.
(See, e.g., ECF No. 80, 68, 61, 58, and 56.)
Additionally, factual disputes and anticipated examinations
of witnesses do not warrant the finding of exceptional
circumstances nor does it warrant the finding that a case is
complex. See Wilborn, 789 F.2d at 1331 (“If
all that was required to establish successfully the
complexity of the relevant issues was a demonstration of the
need for development of further facts, practically all cases
would involve complex legal issues.”); see also
Meeks v. Nunez, 2017 WL 117300 *2 (finding that
exceptional circumstances do not exist where a pro
se plaintiff needs assistance with the investigation and
discovery of the case). Moreover, Plaintiff's attachments
to the motion demonstrate that he is able to investigate and
develop an evidentiary record. Plaintiff attached a document
labeled ‘Exhibit G' that appears to be an affidavit
of a witness to the events in question supporting
Plaintiff's claims. (See ECF No. 64 at 91.) This exhibit,
along with Plaintiff's numerous filings, demonstrates to
the Court that Plaintiff is able to investigate and litigate
claim that he needs an attorney to retrieve documents from
the San Diego County Sheriff's Department is equally
without merit as the exhibit attached by Plaintiff shows this
to be a misstatement of the requirement. The San Diego County
Sheriff's Department response to the medical records
request shows Plaintiff needed to sign a release and pay a
fee, and that access to Plaintiff's records was not
denied on the basis he is not an attorney. (See ECF
No. 64 at 20.)
these reasons, the Court DENIES Plaintiff's motion to
appoint counsel without prejudice.
TO APPOINT EXPERT WITNESS
also moves the Court for the appointment of an expert
witness. However, Plaintiff has not articulated what field of
expertise is needed to litigate the matter. Further,
Plaintiff offers no factual or legal basis for such an
appointment. Assuming, arguendo, the Court applies
all of Plaintiff's reasoning for the appointment of
counsel to the argument for the appointment of an expert
witness, the request similarly fails.
Federal Rules of Evidence allow a District Court to appoint
an expert on its own motion or on the motion of a party.
Fed.R.Evid. 706(a); see also McKinney v. Anderson,
924 F.2d 1500, 1510 (9th Cir.1991), cert. granted,
judgment vacated sub nom. Helling v. McKinney, 502 U.S.
903, 112 S.Ct. 291, 116 L.Ed.2d 236 (1991) and judgment
reinstated, 959 F.2d 853 (9th Cir.1992), aff'd
sub nom. Helling v. McKinney, 509 U.S. 25, 113 S.Ct.
2475, 125 L.Ed.2d 22 (1993). 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 v.
American Home Shield Long Term Disability Plan, 180 F.3d
1065, 1071, where the cost would likely be apportioned to the
government, the court should exercise caution. Moreover, Rule
706 is not a means to avoid the in forma pauperis
statute and its prohibition against using public funds to pay
for the expenses of witnesses, Dixon v. Ylst, 990
F.2d 478, 480 (9th Cir. 1993); Manriquez v. Huchins,
2012 WL 5880431, * 12 (E.D. Cal. 2012), nor does Rule 706
contemplate court appointment and compensation of an expert
witness as an advocate for Plaintiff, Faletogo v.
Moya, 2013 WL 524037, *2 (S.D. Cal. 2013). When
addressing whether the Court should appoint an expert, the
Court should examine whether there exists complex scientific,
technical, or other specialized trial issues. Compare