United States District Court, E.D. California
JAMES W. MILLNER, Plaintiff,
DR. WOODS, et al., Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR AN IMPARTIAL
DENTAL EXPERT WITNESS FINDINGS AND RECOMMENDATIONS REGARDING
DEFENDANTS' RENEWED MOTION FOR SUMMARY JUDGMENT (ECF NOS.
44, 46, 47)
James W. Millner is a state prisoner proceeding pro
se in this civil rights action pursuant to 42 U.S.C.
action proceeds on Plaintiff's first amended complaint
against Defendants Dr. Woods and Dr. Hashem for deliberate
indifference to a serious dental need in violation of the
Eighth Amendment. (ECF Nos. 8, 9.) On August 24, 2017,
Defendant Dr. Woods filed an answer to Plaintiff's first
amended complaint. (ECF No. 15.) On October 27, 2017, the
Court issued the discovery and scheduling order. (ECF No.
November 16, 2017, default was entered against Defendant Dr.
Hashem. (ECF No. 28.) On January 25, 2018, Defendant Dr.
Hashem filed a motion to set aside default. (ECF No. 31.) On
March 5, 2018, the Court granted Defendant Dr. Hashem's
motion to set aside default. (ECF No. 34.) Also, on March 5,
2018, Defendant Dr. Hashem filed an answer to Plaintiff's
first amended complaint. (ECF No. 35.) On March 6, 2018, the
Court issued an order extending the discovery and scheduling
order to Defendant Dr. Hashem. (ECF No. 36.)
September 7, 2018, Defendants Dr. Woods and Dr. Hashem filed
a motion for summary judgment. (ECF No. 38.) On September 24,
2018, Plaintiff filed an opposition to Defendants'
summary judgment motion. (ECF No. 41.) On September 28, 2018,
the Court denied Defendants' summary judgment motion
without prejudice on the ground that the Defendants fails to
provide Plaintiff with an appropriate Rand notice.
(ECF No. 43.) The Court granted Defendants 10 days in which
to file a new summary judgment motion and provide Plaintiff
with the appropriate Rand notice. (Id.).
Finally, the Court told Plaintiff to provide written notice
to the Court whether he intends to stand on his September 24,
2018 opposition or file a new opposition within twenty-one
days of the filing and service of Defendants' new summary
judgment motion and Rand notice. (Id.)
October 3, 2018, Defendants Dr. Woods and Dr. Hashem filed
and served a renewed motion for summary judgment. (ECF No.
44.) Defendants' renewed summary judgment motion included
an appropriate Rand notice. (ECF No. 44-1.)
October 24, 2018, Plaintiff filed an opposition to
Defendants' motion for summary judgment. (ECF No. 46.)
Plaintiff also filed a motion for appointment of an impartial
dental expert witness. (Id.)
October 31, 2018, Defendants filed a reply to their renewed
motion for summary judgment. (ECF No. 47.) Defendants did not
file an opposition to Plaintiff's motion for appointment
of an impartial dental expert witness and the time to file an
opposition has expired.
Defendants' renewed motion for summary judgment and
Plaintiff's motion for appointment of an impartial dental
witness are deemed submitted for review, without oral
argument. Local Rule 230(1).
Plaintiff's Motion for Appointment of an Impartial Dental
requests that the Court appoint an impartial dental expert
witness “to evaluate the dental records and
films” and to “giv[e] the Plaintiff and the
Defendants a non bias [sic] evaluation concerning
the argument in this case.” (ECF No. 46, at 13.) In
support of his request, Plaintiff asserts that, due to the
fact that the dental records at issue in this case date from
2008 to the present, he is unable to pay for the cost of an
expert witness regarding dental care, he is unable to view
the dental x-rays at issue in this case, and he does not have
the qualifications to properly evaluate the complex dental
records and films, the Court should appoint an impartial
dental expert witness “[t]o make this argument fair
between the two parties[.]” (Id.)
Rule of Evidence 702 provides, in relevant part, that
“[a] witness who is qualified as an expert by
knowledge, skill, experience, training or education may
testify in the form of an opinion” if “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(a). Under Federal Rule of Evidence 706, a
Court has discretion to appoint an expert witness on its own
motion or pursuant to the motion of any party to the action.
Fed.R.Evid. 706(a). “A Rule 706 expert typically acts
as an advisor to the court on complex scientific, medical, or
technical matters.” Armstrong v. Brown, 768
F.3d 975, 987 (9th Cir. 2014). Rule 706 “only allows a
court to appoint a neutral expert.” Gorton v.
Todd, 793 F.Supp.2d 1171, 1177 (citation omitted). In
other words, a party may not seek appointment of an expert
witness under Rule 706 “for his own benefit[.]”
Id. at 1177 n.6.
decision of whether to appoint an expert witness under Rule
706 is discretionary.” Id. at 1178.
“Expert witnesses should not be appointed under Rule
706 where not necessary or significantly useful for the trier
of fact to comprehend a material issue in a case.”
Id. at 1181. “Expert witnesses are rarely
appointed under Rule 706 because the adversary system is
usually sufficient to promote accurate factfinding.”
Id. at 1182.
reviewing Plaintiff's motion for appointment of an
impartial dental expert witness and Defendants' renewed
motion for summary judgment, the Court concludes that the
issues in this case are not so complex as to require the
opinion of a court-appointed expert on dental care to assist
the trier of fact. This action proceeds on Plaintiff's
first amended complaint against Defendants Woods and Hashem
for deliberate indifference to Plaintiff's serious dental
needs in violation of the Eighth Amendment. (ECF No. 9.) To
successfully oppose Defendants' motion for summary
judgment, Plaintiff must demonstrate that there is a genuine
issue of material fact regarding whether Defendants acted
with deliberate indifference to his serious dental needs.
See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.
2006). In this case, the determination of whether
Plaintiff's dental needs were sufficiently serious to
amount to an Eighth Amendment violation will depend on
Plaintiff's testimony regarding the extent of his
injuries and how his injuries impacted his daily life.
See McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th
Cir. 1992), overruled on other grounds by WMX Techs.,
Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en
banc) (“The existence of an injury that a
reasonable doctor or patient would find important and worthy
of comment or treatment; the presence of a medical condition
that significantly affects an individual's daily
activities, or the existence of chronic and substantial pain
are examples of indications that a prisoner has a
‘serious' need for medical treatment.”).
Further, “whether a prison [dentist] acted with
deliberate indifference depends on that [dentist's] state
of mind[, ]” so an expert would not be able to given an
opinion or testify that a prison [dentist] was
“deliberately indifferent” without giving
“a false impression” that the expert knows the
answer, when it is the trier of fact that must decide the
issue of whether the prison dentist was deliberately
indifferent. Woods v. Lecureux, 110 F.3d 1215, 1221
(6th Cir. 1997); see also Ledford v. Sullivan, 105
F.3d 354, 359-60 (7th Cir. 1997). Therefore, under these
circumstances, the assistance of a court-appointed expert on
dental care would not be “significantly useful for the
[Court] to comprehend a material issue” in this action.
Gorton, 793 F.Supp.2d at 1181.
Plaintiff's motion for appointment of an impartial dental
expert witness is denied.
Defendants' Renewed Motion for Summary Judgment
judgment is appropriate when the pleadings, disclosure
materials, discovery, and any affidavits provided establish
that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). A material fact is one that
may affect the outcome of the case under the applicable law.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A dispute is genuine “if the evidence is
such that a reasonable [trier of fact] could return a verdict
for the nonmoving party.” Id.
party seeking summary judgment “always bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The exact nature of this
responsibility, however, varies depending on whether the
issue on which summary judgment is sought is one in which the
movant or the nonmoving party carries the ultimate burden of
proof. See Soremekun v. Thrifty Payless, Inc., 509
F.3d 978, 984 (9th Cir. 2007). If the movant will have the
burden of proof at trial, it must “affirmatively
demonstrate that no reasonable trier of fact could find other
than for the moving party.” Id. (citing
Celotex, 477 U.S. at 323). In contrast, if the
nonmoving party will have the burden of proof at trial,
“the movant can prevail merely by pointing out that
there is an absence of evidence to support the nonmoving
party's case.” Id.
movant satisfies its initial burden, the nonmoving party must
go beyond the allegations in its pleadings to “show a
genuine issue of material fact by presenting affirmative
evidence from which a jury could find in [its] favor.”
F.T.C. v. Stefanchik, 559 F.3d 924, 929 (9th Cir.
2009) (emphasis omitted). “[B]ald assertions or a mere
scintilla of evidence” will not suffice in this regard.
Id. at 929; see also Matsushita Electric
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986) (“When the moving party has carried its burden
under Rule 56, its opponent must do more than simply show
that there is some metaphysical doubt as to the material
facts.”) (citation omitted). “Where the record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no ‘genuine
issue for trial.'” Matsushita, 475 U.S. at
587 (quoting First Nat'l Bank of Arizona v. Cities
Serv. Co., 391 U.S. 253, 289 (1968)).
party's position, whether it be that a fact is disputed
or undisputed, must be supported by (1) citing to particular
parts of materials in the record, including but not limited
to depositions, documents, declarations, or discovery; or (2)
showing that the materials cited do not establish the
presence or absence of a genuine dispute or that the opposing
party cannot produce admissible evidence to support the fact.
Fed.R.Civ.P. 56(c)(1) (quotation marks omitted). The Court
may consider other materials in the record not cited to by
the parties, but it is not required to do so. Fed.R.Civ.P.
56(c)(3); Carmen v. San Francisco Unified Sch.
Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord
Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th
resolving a summary judgment motion, “the court does
not make credibility determinations or weigh conflicting
evidence.” Soremekun, 509 F.3d at 984.
Instead, “[t]he evidence of the [nonmoving party] is to
be believed, and all justifiable inferences are to be drawn
in [its] favor.” Anderson, 477 U.S. at 255.
Inferences, however, are not drawn out of the air; the
nonmoving party must produce a factual predicate from which
the inference may reasonably be drawn. See Richards v.
Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D.
Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987).
Summary of Plaintiff's First Amended Complaint
incidents alleged in the first amended complaint occurred
while Plaintiff was housed at Kern Valley State Prison
(“KVSP”). (First Amended Complaint, ECF No. 8, at
7, ¶ 3.) Plaintiff names Dr. Woods and Dr. Hashem,
dentists at KVSP, as defendants. (Id. at 7,
to December 2014, Plaintiff had damage to his lower teeth,
which required him to have a lower partial denture.
(Id. at 7, ¶ 7.) On December 29, 2014, after
his lower partial denture had been taken during a cell search
at KVSP, Plaintiff paid for a new lower partial denture.
(Id. at 7, ¶ 8.) After a year of not receiving
his lower partial denture, Plaintiff made it clear to
Defendant Woods that, because of the ...