United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S REQUEST FOR APPOINTMENT
OF EXPERT WITNESS, INVESTIGATOR, AND THIRD MOTION FOR
APPOINTMENT OF COUNSEL [ECF NO. 89]
Plaintiff
Michael Benanti is appearing pro se and in forma pauperis in
this civil rights action pursuant to Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
Currently
before the Court is Plaintiff's request for appointment
of an expert witness, investigator, and third request for
appointment of counsel, filed January 6, 2020. The Court
deems Plaintiff's motion suitable for review without an
opposition.
I.
DISCUSSION
A.
Appointment of Expert Witness
Federal
Rule of Evidence 706(a) permits a “district court to
apportion all the cost [of an expert witness] to one
side” in an appropriate case, as when[] one of the
parties in an action is indigent” and “the expert
would significantly help the court.” McKinney v.
Anderson, 924 F.2d 1500, 1511 (9th Cir. 1991), vacated
on other grounds sub nom. Helling v. McKinney, 502
U.S. 903 (1991), judgment reinstated, 959 F.2d 853 (9th Cir.
1991), aff'd, 509 U.S. 25 (1993). An expert witness may
testify to help the trier of fact understand the evidence or
determine a fact at issue. Fed.R.Evid. 702. Under Rule 706(a)
of the Federal Rules of Evidence, the Court has discretion to
appoint a neutral expert on its own motion or on the motion
of a party. Fed.R.Evid. 706(a); Walker v. Am. Home Shield
Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir.
1999). Rule 706 does not contemplate court appointment and
compensation of an expert witness as an advocate for
Plaintiff. See Gamez v. Gonzalez, No. 08cv1113 MJL
(PCL), 2010 WL 2228427, at *1 (E.D. Cal. June 3, 2010).
Indeed, appointment of an independent expert under
“Rule 706 should be reserved for exceptional cases in
which the ordinary adversary process does not suffice.”
In re JoinT E. & S. Dists. Asbestos Litig., 830
F.Supp. 686, 693 (E.D.N.Y. 1993) (allowing appointment of
independent expert in mass tort case). This case is not such
an exceptional case.
The
appointment of an independent expert is to assist the trier
of fact, not a particular litigant. The Court may not appoint
an expert witness to advocate for Plaintiff at trial.
Plaintiff fails to provide a valid basis to require the
appointment of a neutral expert witness to assist the Court
and/or a jury. Indeed, the Court was able to resolve
Defendants' motion for summary judgment without expert
testimony as Plaintiff's claim of deliberate indifference
was not so complex as to require an expert witness to present
or prove the case. See, e.g., Noble v.
Adams, No. 1:03-cv-05407-AWI-SMS (PC), 2009 WL 3028242,
at *1 (E.D. Cal. Sept. 16, 2009) (denying plaintiff's
request to appoint medical expert witness in section 1983
action because the “issues are not so complex as to
require the testimony of an expert”). Accordingly,
Plaintiff's motion for an appointment of an expert
witness are denied.
B.
Appointment of Investigator
Plaintiff
has not shown that expenditure of public funds to appoint him
an investigator is proper. See Tedder v. Odel, 890
F.2d 210, 211-12 (9th Cir. 1989) (“[T]he expenditure of
public funds on behalf of an indigent is proper only when
authorized by Congress.” (citation omitted));
Graves-Bey v. Hedgepeth, No. 1:08-cv-01718-LJO-GSA
(PC), 2009 WL 3789162, at *1 (E.D. Cal. Nov. 10, 2009)
(denying plaintiff's motion for appointment of an
investigator).
C.
Appointment of Counsel
Plaintiff
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 any 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 v. Rowland, 113 F.3d at 1525.
Without
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 on 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).
In the
present case, the Court does not find the required
exceptional circumstances. Even if it assumed that Plaintiff
is not well versed in the law and that he has made serious
allegations which, if proved, would entitle him to relief,
his case is not exceptional. The legal issues present in this
action are not complex, and Plaintiff has thoroughly set
forth his allegations in the complaint. In addition, the
Court finds that Plaintiff is not likely to succeed on the
merits, as Findings and Recommendations are pending to grant
Defendants' motion for summary judgment. (ECF No. 85.)
Circumstances common to most prisoners, such as lack of legal
education and limited law library access, do not establish
exceptional circumstances that would warrant a request for
voluntary assistance of counsel. While a pro se litigant may
be better served with the assistance of counsel, so long as a
pro se litigant, such as Plaintiff in this instance, is able
to “articulate his claims against the relative
complexity of the matter, ” the “exceptional
circumstances” which might require the appointment of
counsel do not exist. Rand v. Rowland, 113 F.3d at
1525 (finding no abuse of discretion under 28 U.S.C. §
1915(e) when district court denied appointment of counsel
despite fact that pro se prisoner “may well have fared
better-particularly in the realm of discovery and the
securing of expert testimony.”) In the present case,
the Court does not find the required exceptional
circumstances. Accordingly, Plaintiff's third motion for
the appointment of counsel is HEREBY DENIED, without
prejudice.
II.
CONCLUSION
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