United States District Court, S.D. California
ANDREW A. CEJAS, Plaintiff,
ROBERT BROWN, et al., Defendants.
ORDER: (1) DENYING WITHOUT PREJUDICE PLAINTIFF'S
MOTIONS FOR APPOINTMENT OF AN EXPERT PURSUANT TO FED. R. CIV.
P. 706 [ECF NOS. 51, 53]; AND(2) DENYING PLAINTIFF'S
MOTION FOR FULL DISCLOSURE OF PERSONNEL RECORDS [ECF NO.
JILL L. BURKHARDT UNITED STATES MAGISTRATE JUDGE
before the Court are the following three motions filed by
plaintiff Andrew A. Cejas (“Plaintiff”): (1) a
motion for appointment of a neutral expert witness or report
pursuant to Federal Rule of Evidence 706 and 28 U.S.C. §
1332 (ECF No. 51); (2) a motion to retain an expert witness
and/or appointment of expert (ECF No. 53); and (3) a motion
requesting full disclosure of personnel records pursuant to
Senate Bill 1421 and Amended California Penal Code
§§ 832.7 and 832.8 (ECF No. 56). The Court will
address each motion below.
a prisoner proceeding pro se and in forma
pauperis, filed a Civil Rights Complaint
(“Complaint”) on March 15, 2018, alleging civil
rights violations pursuant to 42 U.S.C. § 1983 against
defendants R. Brown, F. Hadjadj, J. Davies, and P. Covello
(collectively, “Defendants”). (ECF No. 1.)
Plaintiff is incarcerated at Richard J. Donovan Correctional
Facility (“RJD”) in San Diego, California.
(Id. at 12.) In his Complaint, Plaintiff alleges
that Defendants violated his right to the free exercise of
his Buddhist faith under the First Amendment, imposed a
substantial burden on the exercise of that faith in violation
of the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”), 42 U.S.C. § 2000cc, et
seq., and denied him equal protection of the law under
the Fourteenth Amendment, “from 2016 through
2018.” (Id. at 22-34.)
alleges that he has been a serious Buddhist practitioner for
over ten years. (Id. at 24.) His faith mandates
meditation, chanting, and prostration, in an indoor setting.
(Id.) Plaintiff alleges that Buddhists are scheduled
for chapel access at RJD, but weekly access is denied.
(Id. at 24-34) Plaintiff further alleges that
Defendants have a duty to provide supervision for Buddhist
services, but have failed to do so. (Id. at 25-34.)
Plaintiff alleges that Defendants favor other religions by
granting them a guaranteed weekly service and weekly chaplain
supervision. (Id. at 28, 33.) Plaintiff also alleges
that Defendants violated RLUIPA by failing to provide food at
state expense for Buddhist holidays. (Id. at 31.)
Motions for Appointment of a Neutral Expert Witness (ECF Nos.
Court has 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. Am. Home Shield Long Term
Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999).
Court appointment of an expert may 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.” Brown v. Sagireddy,
No. 14-cv-0338 JAM ACP, 2016 WL 446527, at *10 (E.D. Cal.
Feb. 5, 2016), adopted by 2016 WL 8731089 (E.D. Cal.
Mar. 25, 2016) (quoting Ledford v. Sullivan, 105
F.3d 354, 358-59 (7th Cir. 1997)); see also Fed. R.
Evid. 702. Rule 706 does not, however, “contemplate
court appointment and compensation of an expert witness as an
advocate for one of the parties.” Faletogo v.
Moya, No. 12-cv-631-GPC(WMC), 2013 WL 524037, at *2
(S.D. Cal. Feb. 12, 2013).
court also has the discretion to apportion costs, including
the apportionment of costs to one side. Fed.R.Evid.
706(c)(1); see also Claiborne v. Blauser, ___ F.3d
___, 2019 WL 2676900, at *11 (9th Cir. June 28, 2019);
Ford ex rel. Ford v. Long Beach Unified Sch. Dist.,
291 F.3d 1086, 1090 (9th Cir. 2002). However, where the cost
would likely be apportioned to the government, the court
should exercise caution. Brooks v. Tate, No.
11-cv-01503 AWI-DLB PC, 2013 WL 4049043, at *1 (E.D. Cal.
Aug. 7, 2013). 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, No.
09-cv-00456-LJO-BAM PC, 2012 WL 5880431, at *12 (E.D. Cal.
has filed two substantially similar motions requesting the
appointment of a neutral expert witness pursuant to Federal
Rule of Evidence 706. (ECF Nos. 51, 53.) Plaintiff requests
that the Court appoint a neutral expert witness to assist the
Court and the trier of fact. (ECF No. 51 at 1-2.) Plaintiff
requests an expert in world religion and Buddhist traditions
and mandatory practices. (Id.) Plaintiff
contemplates the appointment of a neutral expert witness who
would possess skills or knowledge beyond the competence of an
“average layman or juror” and would be reliable
in the expert's field. (Id. at 2.) Specifically,
Plaintiff requests an expert that would be able to determine
the complex mandatory Buddhist rights in group services and
the substantial burden on his religious practice. (ECF No. 53
at 3.) He claims that a “lay person has difficulty
grasping the understanding of mandatory Buddhist group
services . . . .” (Id. at 3-4.)
contends that the neutral witness report would be helpful
because Plaintiff is a prisoner and cannot cross-examine
Defendants' expert witness or present a proper opposition
to Defendants' expert report and/or motion for summary
judgment. (See ECF No. 51 at 2; ECF No. 53 at 4.)
Plaintiff anticipates that the neutral expert would review
each parties' expert report and supporting materials to
prepare and submit a separate and independent expert report
critiquing the reports and opinions contained therein. (ECF
No. 51 at 2.)
most important question a court must consider when deciding
whether to appoint a neutral expert witness is whether doing
so will promote accurate factfinding.” Gorton v.
Todd, 793 F.Supp.2d 1171, 1179 (E.D. Cal. 2011). The
Court cannot presently answer this question, as the case is
currently in the discovery phase. (See ECF No. 40.)
Defendants have not filed a motion for summary judgment and
Plaintiff does not state that Defendants have produced an
expert report addressing whether certain Buddhist practices
are mandatory. (See Id. at ¶¶ 6, 7 (expert
designations and disclosures due August 23, 2019).)
Accordingly, the Court finds that Plaintiff's motions ...