United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S MOTION [ECF NO.
JILL L. BURKHARDT, UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's motion seeking an order
appointing an expert witness. (ECF No. 63.) Plaintiff states
the following as the grounds for his motion:
Due to the fact this case involves complex issues of
conditions of the Prison. Basically, only an expert can
accurately and more precisely testify about what protocols
that officers need to follow whenever conditions as how I
complaint [sic] occurred. Also, only an expert can
assert about the failures of the officials running facility
as well as the Defendants in question. Without an expert it
will be impossible to prove the officials fail to do certaint
[sic] protocols that was in their access to avoid my
(Id.) Defendants oppose the motion on the grounds
that the request for an expert is both untimely and
unnecessary in this case. (ECF No. 69.) Without leave of
court,  Plaintiff filed a reply expanding upon the
grounds for his motion. (ECF No. 72.)
expert witness may testify to help the trier of fact
determine the evidence or a fact at issue. Fed.R.Evid. 702. A
court has full discretion to appoint an expert witness either
by its own motion or by a party's motion. Fed.R.Evid.
706(a); McKinney v. Anderson, 924 F.2d 1500, 1510-11
(9th Cir. 1991), overruled on other grounds by Helling v.
McKinney, 502 U.S. 903 (1991). “Appointment of an
expert witness may generally be appropriate when scientific,
technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or decide a fact in
issue.” Arellano v. Hodge, No.
14cv590-JLS-JLB, 2017 WL 2692875, at *1 (S.D. Cal. June 22,
2017) (internal quotations omitted). 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. Gorton v. Todd, 793
F.Supp.2d 1171, 1181 (E.D. Cal. 2011). Additionally, expert
witnesses should not be appointed to serve as an advocate for
a party. Faletogo v. Moya, 12cv631-GPC-WMc, 2013 WL
524037, at *2 (S.D. Cal. Feb. 12, 2013).
Rule of Evidence 706 is not a means to avoid the in forma
pauperis statute, 28 U.S.C. § 1915, and its
prohibition against using public funds to pay the expenses of
witnesses in a § 1983 prisoner civil rights action.
Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993).
Thus, courts should appoint an expert for an indigent inmate
and apportion all costs to an opponent only “when the
expert would significantly help the court” understand
complex or compelling issues. Bovarte v.
Schwarzenegger, 08cv1661-LAB-NLS, 2011 WL 748597, at *20
(S.D. Cal. Sept. 21, 2011), Report and Recommendation adopted
at 2012 WL 760620 (S.D. Cal. Mar. 7, 2012).
reviewed the motion, opposition, and reply papers, the Court
concludes that the type of expert witness requested by
Plaintiff is not necessary and would not be significantly
useful for the trier of fact to comprehend a material issue
in this case. Plaintiff alleges that Defendants violated his
Eighth Amendment rights by leaving him in a
sewage-contaminated cell from April 17, 2014, to April 22,
2014. (See ECF Nos. 13 at 3-7; 55 at 1.) Plaintiff
argues an expert is needed to inspect the scene of the
incident (cell 110) and opine on disputed facts based on
knowledge gained from a site inspection and/or knowledge of
prison protocols and procedures for officers in
administrative segregation units. (ECF Nos. 63, 72.) The
Court finds that this case does not involve complicated
issues of fact, and thus, specialized knowledge from the type
of expert requested is not necessary and would not be
the appointment of an expert would unnecessarily increase
litigation costs. Because Plaintiff is proceeding in
forma pauperis (ECF Nos. 3, 23), the Court assumes that
Plaintiff is unable to compensate an expert witness. As noted
above, under the in forma pauperis statute, 28
U.S.C. § 1915, the Court is prohibited from using public
funds to pay the expenses of witnesses in a § 1983
prisoner civil rights action. Dixon v. Ylst, 990
F.2d 478, 480 (9th Cir. 1993). Thus, if the Court were to
appoint an expert on behalf of Plaintiff, it would be
required to apportion the cost of Plaintiff's witness to
Defendants. See Fed. R. Evid. 706(b). In instances
such as this, where the government would be required to bear
the cost, the Court must exercise caution. Jimenez v.
Sambrano, 04cv1833-L-PCL, 2009 WL 653877, at *2 (S.D.
Cal. Mar. 12, 2009). Here, as noted above, the Court
concludes that neither the facts nor the legal issues in this
matter are complex and it would be unjust to require the
government to bear the cost of an expert witness.
motion is also denied as untimely. Plaintiff filed his motion
on October 18, 2017, after the September 29, 2017 deadline in
the Court's scheduling order for the parties to complete
all discovery. (ECF Nos. 63, 54 at 2-3.) The parties'
Joint Discovery Plan shows that Plaintiff “met and
conferred telephonically on May 30, 2017” with counsel
for Defendants regarding the scheduling order deadlines in
this case, agreed that this case does not implicate expert
evidence, and accepted the Court's scheduling
order. (ECF No. 63.) Plaintiff is an experienced
litigator who has demonstrated competence in this case as
well as in the various cases he has filed in this
court. However, Plaintiff has not demonstrated
diligence in conducting discovery in this case. See Johnson
v. Mammoth Recreations, Inc., 975 F.2d 604, 609-10 (9th
Cir. 1992) (“The district court may modify the pretrial
schedule if it cannot reasonably be met despite the diligence
of the party seeking the extension.”). And the Court is
not persuaded that the obstacles Plaintiff asserts he has
faced during the course of this litigation prevented him from
filing the instant motion sooner. (See ECF No. 72.)
Thus, the motion is also denied as untimely.
reasons discussed above, Plaintiffs motion seeking an order
appointing an ...