“The magistrate judge correctly ruled 20 that 28 U.S.C. § 1915, the statute, does not waive payment of fees or expenses 21 for witnesses.”
How later courts described this case
- “The magistrate judge correctly ruled 20 that 28 U.S.C. § 1915, the statute, does not waive payment of fees or expenses 21 for witnesses.”
Written by the judges who cited it.
The opinion
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7 UNITED STATES DISTRICT COURT
8 SOUTHERN DISTRICT OF CALIFORNIA
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Case No.: 18CV2278-BAS (BLM)
10 CLIFFORD ALLAN VENSON,
11 Plaintiff, ORDER DENYING PLAINTIFF’S
MOTIONS FOR EXPERT WITNESS AND
12 v. REQUEST FOR JUDICIAL NOTICE
13 SERGEANT Q. JACKSON, et al.,
[ECF Nos. 73, 75, 78, AND 80]
14 Defendants.
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18 I. MOTIONS FOR EXPERT WITNESSES
19 Currently before the Court are Plaintiff’s Motions for Expert Witness [ECF Nos. 73, 75,
20 and 78], Defendants A. Diaz, Q. Jackson, and J. Knight’s opposition to the motions [ECF No.
21 82], and Defendant R. Hernandez’s Joinder to Defendants’ opposition [ECF No. 83]. Having
22 considered all of the briefing and supporting documents, and for the reasons set forth below,
23 the Court DENIES Plaintiff’s Motions for Expert Witness.
24 RELEVANT BACKGROUND
25 On October 28, 2019, Plaintiff, a prisoner proceeding and , filed
26 a Second Amended Complaint under 42 U.S.C. § 1983 against three correctional officers and
27 one sergeant alleging retaliation and the use of unnecessary and excessive force while Plaintiff
28 was handcuffed. ECF No. 60.
1 PLAINTIFF’S MOTIONS
2 On January 14, 2020, Plaintiff submitted a Motion for Expert Witness that was received
3 by the Court on January 23, 2020 and accepted on discrepancy on January 28, 2020. ECF Nos.
4 72 and 73. Plaintiff seeks to have the Court appoint Correctional Consultant James M. Esten as
5 his expert and to pay for the cost of his services. ECF No. 73 at 2. Plaintiff proposes that the
6 Court deduct the cost of Mr. Esten’s services from his damages if he is successful and judgment
7 is rendered in his favor. Id. Plaintiff reached out to Mr. Esten via letter on December 29, 2019
8 and received a response seeking additional information on January 6, 2020. Id. at 9 (letter from
9 Mr. Esten to Plaintiff noting that he does not do work and that Plaintiff’s case could
10 easily cost in excess of $5,000.00). Plaintiff notes that he is filing this motion in part to satisfy
11 the January 31, 2020 deadline for expert designations. Id. at 7 (“Plaintiff’s Decl.”); see also ECF
12 No. 53 at 1. Plaintiff argues that an expert will “be able to provide information that [Plaintiff]
13 does not have access to.” Plaintiff’s Decl. at ¶ 4. Finally, Plaintiff states that he “has been
14 denied all discovery requested.” ECF No. 73 at 5.
15 On January 18, 2020, Plaintiff submitted a second Motion for Expert Witness that was
16 received by the Court on January 24, 2020 and accepted on discrepancy on January 28, 2020.
17 ECF Nos. 74 and 75. It appears that Plaintiff seeks to have the Court engage the services of
18 The Solutions Team @ Wexco on behalf of Plaintiff. Id. at 3. The Solutions Team @ Wexco’s
19 services include:
20 depositions (witness & opposing experts) identify key documents, develop
21 questions areas, analyze testimony & exhibits. Key documents – photos, incident
reports. Key inquires: responsibility & conduct actions.
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23 Id. Plaintiff notes that defense counsel has not responded to his discovery requests. Id. at 5.
24 On January 29, 2020, Plaintiff submitted a Motion for Expert Witness that was received
25 by the Court on February 3, 2020 and accepted on discrepancy on February 4, 2020. ECF Nos.
26 77 and 78. Plaintiff again seeks to have the Court appoint Correctional Consultant James M.
27 Esten as his expert and to pay for the cost of his services. ECF No. 78 at 4. Plaintiff notes that
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1 Mr. Esten will provide “information on procedure & speak comprehensively about custody & use
2 of force.” Id. Specifically, Plaintiff plans to use Mr. Esten’s expertise “as it applies to the training
3 of new correctional officers & prison culture as it applies to inmates[s] & staff.” Id. Mr. Esten
4 charges $75 per hour for travel, $200 per hour for research and for deposition testimony, $1000
5 for court appearances, $95-$115 for each exhibit, and the government rate for personal vehicle
6 use, and expenses. Id. at 10. Plaintiff notes that defense counsel ignored the First Set of
7 Interrogatories that Plaintiff served on September 16, 2019.1 Id. at 5.
8 DEFENDANTS’ OPPOSITION
9 On February 10, 2020, Defendants A. Diaz, Q. Jackson, and J. Knight filed an opposition
10 to Plaintiff’s motions to appoint expert witnesses. ECF No. 82. Defendants contend that “expert
11 testimony is not appropriate when the jury can easily understand the allegations” and that
12 “Plaintiff’s request for the Court to pay for an expert adverse to the defense is not supported by
13 case law.” Id. at 2 and 4. Defendants also contend that Plaintiff’s allegations of excessive force
14 and retaliation “are straightforward and can be easily understood by a lay person without expert
15 opinion.” Id. at 2. Defendants note that Plaintiff is not required to have an expert and that
16 Plaintiff’s complaints about Defendants’ lack of discovery responses are incorrect and better
17 suited to a motion to compel. Id. at 2-3. Finally, Defendants contend that the case law does
18 not support Plaintiff’s request that the Court appoint an expert that will only advocate for
19 Plaintiff. Id. at 4-5.
20 On February 11, 2020, Defendant R. Hernandez filed a joinder to co-defendants’
21 opposition to Plaintiff’s motion to appoint expert witnesses. ECF No. 83. Defendant Hernandez
22 states that he joins Defendants’ opposition brief and that
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24 1 Plaintiff’s discovery concerns should not be raised in a Motion for Expert Witness. If Plaintiff
has properly served discovery on Defendants and Defendants have not responded, Plaintiff may
25 file a motion to compel discovery. The motion to compel discovery responses must include the
specific discovery requests, proof that the requests were served on Defendant(s), any response
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received from Defendant(s), a description of Plaintiff’s efforts to meet and confer with
27 Defendants’ counsel regarding the discovery, and legal and factual support for Plaintiff’s motion
to compel. The Court notes that Defendants state that they “have not received any discovery
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1 [i]n sum, expert witnesses are not needed to help the jury to assess whether the
force used was reasonable, as this is a factual issue for the jury. Similarly, an
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expert witness is not needed to help explain the grievance process to the jury.
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4 Id. at 1.
5 LEGAL STANDARD
6 Rule 706 of the Federal Rules of Evidence authorizes the Court to appoint an independent
7 expert. Such an appointment is within the discretion of the trial judge and may be appropriate
8 when “scientific, technical, or other specialized knowledge will assist the trier of fact to
9 understand the evidence or decide a fact in issue.” See Torbert v. Gore, 2016 WL 3460262, at
10 *2 (S.D. Cal. June 23, 2016) (citation omitted); see also Armstrong v. Brown, 768 F.3d 975, 987
11 (9th Cir. 2014) (“A Rule 706 expert typically acts as an advisor to the court on complex scientific,
12 medical, or technical matters.”). An expert appointed pursuant to Rule 706 does not serve as
13 an advocate for either party, and each party retains the ability to call its own experts. Fed. R.
14 Evid. 706(e); Faletogo v. Moya, 2013 WL 524037, at *2 (S.D. Cal. Feb. 12, 2013) (Rule 706
15 “does not contemplate court appointment and compensation of an expert witness as an advocate
16 for one of the parties.”). “The statute, 28 U.S.C. § 1915, does not authorize
17 federal courts to appoint or authorize payment for expert witnesses for prisoners or other
18 indigent litigants.” Stakey v. Stander, 2011 WL 887563, at *3 n.1 (D. Idaho Mar. 10, 2011);
19 see also Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993) (“The magistrate judge correctly ruled
20 that 28 U.S.C. § 1915, the statute, does not waive payment of fees or expenses
21 for witnesses.”). “Ordinarily, the plaintiff must bear the costs of his litigation, including expert
22 expenses, even in cases.” Stakey, 2011 WL 887573, at *3 n.1.
23 DISCUSSION
24 Plaintiff’s claims of retaliation and excessive force are not so complex as to warrant the
25 testimony of an expert. In evaluating a claim of excessive force, the focus is “whether force
26 was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically
27 to cause harm.” Faletogo, 2013 WL 524037, at *2 (quoting Hudson v. McMillian, 503 U.S. 1, 7
28 (1992)). This issue can be understood by a jury without the assistance of “scientific, technical,
1 or other specialized knowledge.” Torbert, 2016 WL 3460262, at *2. Plaintiff does not argue or
2 present evidence establishing that his case involves complex or technical matters and the Court
3 finds that it does not. Plaintiff appears to be asking the Court to appoint an expert because he
4 cannot afford to do so and he would like to have an expert support his position. This is not an
5 appropriate basis for the appointment of an independent expert under Rule 706. See Noble v.
6 Adams, 2009 WL 3028242, at *1 (E.D. Cal. Sept. 16, 2009) (denying plaintiff’s motion for
7 appointment of a Rule 706 expert in a § 1983 civil rights action where “the issues [we]re not so
8 complex as to require the testimony of the expert witness to assist the trier of fact” and
9 reasoning that “Plaintiff has not requested an expert because one is needed to assist the court.
10 Rather Plaintiff is requesting an expert because he cannot afford to hire one.”); see also
11 Faletogo, 2013 WL 524037, at *2. Accordingly the Court finds that a court-appointed expert is
12 not appropriate for this case and DENIES Plaintiff’s motion for such an appointment.
13 The denial of a court-appointed expert does not prevent any party from presenting expert
14 testimony. Fed. R. Evid. 706(e). Here, Plaintiff seems to be filing his motions in part because
15 he did not want to miss the January 31, 2020 deadline for expert designation. ECF No. 53 at 1;
16 see also ECF No. 73 at 7 (“I did want to provide the initial letter as evidence before the 1-31-
17 20” deadline); and ECF No. 75 at 2 (“Plaintiff prays that this Court allow additional time beyond
18 January 31, 2020 for Plaintiff to provide support documentation.”). If Plaintiff wants to hire an
19 expert to help him with his case, Plaintiff may do so but Plaintiff must pay the expert’s costs.
20 To accommodate Plaintiff’s apparent desire to hire an expert, the Court GRANTS Plaintiff’s
21 motion to extend the expert discovery deadlines. If Plaintiff wants to designate an expert, he
22 must do so by March 16, 2020. If he does designate an expert, Plaintiff also must provide the
23 required expert disclosures by March 16, 2020. If Plaintiff does designate an expert witness,
24 Defendants may designate a rebuttal expert witness, and provide the required disclosures, by
25 April 13, 2020.2 The Court notes that the statute, 28 U.S.C. § 1915, “does
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2 With the exception of the expert discovery deadline which is continued from March 27, 2020
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1 not waive payment of fees or expenses for witnesses” so Plaintiff must pay his expert’s fees and
2 costs. Dixon, 990 F.2d at 480 (denying compensation for two medical doctors subpoenaed to
3 testify on prisoner’s behalf in 42 U.S.C. § 1983 action); see also Bovarie v. Schwarzenegger,
4 2011 WL 7468597, at *19 (S.D. Cal. Sept. 21, 2011) (citing Hadsell v.Comm’r, 107 F.3d 750,
5 752 (9th Cir. 1997)) (“Section 1915 . . . does not authorize federal courts to finance or subsidize
6 a civil action or appeal by paying expert fees or other costs.”). Thus, while Plaintiff may designate
7 an expert witness as set forth above, he must pay for that expert himself and to the extent he
8 is requesting payment of expert fees under 28 U.S.C. § 1915, Plaintiff’s request is DENIED.
9 II. MOTION FOR JUDICIAL NOTICE
10 On January 28, 2020, Plaintiff submitted a Motion for Judicial Notice that was received
11 by the Court on February 3, 2020 and accepted on discrepancy on February 4, 2020. ECF Nos.
12 79 and 80. Plaintiff requests that the Court take judicial notice of another case in this district,
13 Moody, et al., v. California Department of Corrections and Rehabilitation, et al, Case Number
14 18cv1110-WQH(AGS), that involves some of the same defendants as the Defendants in the
15 instant matter and similar claims. ECF No. 80 at 1. Plaintiff argues that this information
16 demonstrates that “the culture and conduct of defendants described by all plaintiffs who are all
17 ‘black’ is consist[e]nt.” Id. at 2.
18 Under Federal Rule of Evidence 201(b), “a court may take judicial notice of ‘matters of
19 public record.’” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (quoting Mack v.
20 S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986)). Additionally, a court has authority
21 to take judicial notice of a fact “not subject to reasonable dispute because it: (1) is generally
22 known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily
23 determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid.
24 201(b); see also Lee, 250 F.3d at 689-90.
25 Plaintiff has not tied his request for judicial notice to an actual purpose or pending motion
26 in this case. Plaintiff was not involved in the allegations being made in the Moody matter and
27 the Moody Plaintiffs are not involved in this instant matter. The fact that there may be some
28 overlap between Defendants in both cases is not a matter needing or requiring judicial notice.
1 || In addition, Plaintiff's request is based on his argument that the Moody case involves “the same
2 substantially the same parties.” Id. at 1. The Moody case involves four Plaintiffs, none of
3 |}whom are a party to the instant matter. Id. at Exh. A. The Moody case also names thirteen
4 ||defendants, only two of whom are also named in this case, Defendant Paramo and Defendant
5 ||Duran.? Id. Accordingly, Plaintiff's motion is DENIED.
6 IT 1S SO ORDERED. .
7 ||Dated: 2/19/2020 lxiobee Mager
8 Hon. Barbara L. ajor
9 United States Maaistrate Judae
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3 While two of the Moody Defendants appeared in this case, Defendant Paramo was dismissed
28 |! from the instant matter on August 13, 2019. See Docket; see also ECF No. 51.