United States District Court, E.D. California
ORDER DENYING REQUESTS FOR ATTORNEY'S FEES,
APPOINTMENT OF COUNSEL, AND APPOINTMENT OF EXPERT WITNESS
(ECF No. 51.) ORDER REQUIRING PLAINTIFF TO FILE OPPOSITION OR
STATEMENT OF NON-OPPOSITION TO DEFENDANTS' MOTION TO
DISMISS (ECF No. 27.)
S. AUSTIN UNITED STATES MAGISTRATE JUDGE
August 18, 2017, the court entered findings and
recommendations, recommending that this case be dismissed for
Plaintiff's failure to comply with the court's orders
requiring him to file an opposition to Defendants' motion
to dismiss. (ECF No. 50.) On August 28, 2017, Plaintiff filed
objections to the findings and recommendations, asserting
that he filed an opposition to the motion to dismiss after
the court issued its order on July 24, 2017. (ECF No. 51.)
Plaintiff also requested attorney fees, appointment of
counsel, and appointment of an expert witness. (Id.)
REQUESTS FOR COUNSEL, EXPERT WITNESS, AND ATTORNEY
Request for Appointment of Counsel
does not have a constitutional right to appointed counsel in
this action, Rand v. Rowland, 113 F.3d 1520, 1525
(9th Cir. 1997), and the court cannot require an attorney to
represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1).
Mallard v. United States District Court for the Southern
District of Iowa, 490 U.S. 296, 298 (1989). However, in
certain exceptional circumstances the court may request the
voluntary assistance of counsel pursuant to section
1915(e)(1). Rand, 113 F.3d at 1525.
a reasonable method of securing and compensating counsel, the
court will seek volunteer counsel only in the most serious
and exceptional cases. In determining whether
“exceptional circumstances exist, the district court
must evaluate both the likelihood of success of the merits
[and] the ability of the [plaintiff] to articulate his claims
pro se in light of the complexity of the legal
issues involved.” Id. (internal quotation
marks and citations omitted).
present case, the court does not find the required
exceptional circumstances. At this stage of the proceedings,
the court cannot make a determination that Plaintiff is
likely to succeed on the merits. Defendants have filed a
motion to dismiss this case, which is pending and may result
in the dismissal of the case. Moreover, based on the
court's record, Plaintiff is able to adequately
articulate his claims and respond to the court's orders.
Plaintiff's claims, arising from allegations of an
improper strip search and retaliation, do not appear complex.
Therefore, Plaintiff's request for appointment of counsel
shall be denied. Plaintiff is advised that he is not
precluded from renewing the motion for appointment of counsel
at a later stage of the proceedings.
Request for 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. 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, 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).
Plaintiff requests the court to appoint an expert witness to
represent Plaintiff. While the court is cognizant of the
challenges an IFP litigant such as Plaintiff faces in
retaining an expert witness, the IFP statute does not grant
the court the authority to appoint expert witnesses on behalf
of a party. 28 U.S.C. § 1915; See also Pedraza v.
Jones, 71 F.3d 194, 196 (5th Cir. 1995). Moreover, Rule
706 is not meant for the appointment of an expert witness as
an advocate for Plaintiff.
has not explained why he believes an expert witness is needed
in this case. The court considers whether an expert witness
would assist the court in understanding the evidence or to
determining a fact in issue. Fed.R.Evid. 702. Here,
Plaintiff's allegations are no more complex than those
found in a majority of cases alleging an improper strip
search or retaliation pending before this court. The court
does not require an expert witness to determine whether
Defendants improperly strip-searched Plaintiff or retaliated
against him. Therefore, Plaintiff's request for the
appointment of an expert witness shall be denied.
Request for Attorney's Fees
also requests attorney's fees. Plaintiff is not entitled
to attorney's fees, because he is representing himself in
this action. Because Plaintiff is not represented by an
attorney, he is not entitled to recover attorney's fees,
even if he prevails in this action. See Friedman v.
Arizona, 912 F.2d 328, 333 n.2 (9th Cir. 1990),
superseded by statute as state in Warsoldier v.
Woodford, 418 F.3d 989 (9th Cir. 2005); Gonzalez v.
Kangas, 814 F.2d 1411, 1412 (9th Cir. 1987); see
also Rickley v. Cnty. of Los Angeles654 F.3d 950, 954
(9th Cir. 2011) (“The Court accordingly adopted a per
se rule, categorically ...