Sekerke v. Olsen

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 KEITH WAYNE SEKERKE, Case No.: 3:20-cv-01045-JO-AHG

12 Plaintiff,

ORDER:

13 v.

(1) DENYING PLAINTIFF’S

14 ADAM ARKWRIGHT, et al.,

MOTION FOR APPOINTMENT OF

15 Defendants. COUNSEL [ECF No. 52],

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(2) DENYING PLAINTIFF’S

17 MOTION TO SERVE

INTERROGATORIES

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[ECF No. 53], and

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(3) DENYING PLAINTIFF’S

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MOTION TO REOPEN DISCOVERY

21 AND APPOINT EXPERT WITNESS

[ECF No. 56]

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23 Before the Court are three motions:

24 1. Plaintiff Keith Wayne Sekerke’s (“Plaintiff”) Motion for Appointment of

25 Counsel (ECF No. 52);

26 2. Plaintiff’s Motion to Serve Interrogatories (ECF No. 53); and

27 3. Plaintiff’s Motion to Reopen Discovery and Appoint Expert Witness (ECF

28 No. 56).

1 Defendant has indicated that it opposes the motions. ECF Nos. 54, 55, 61. The Court

2 will address each in turn.

3 I. PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL

4 Plaintiff, proceeding pro se and in forma pauperis and currently incarcerated at

5 Valley State Prison, filed a civil complaint pursuant to 42 U.S.C. § 1983 relating to

6 incidents that occurred while incarcerated at San Diego Central Jail in San Diego,

7 California. ECF Nos. 8, 9. On January 17, 2023, Plaintiff filed the instant Motion for

8 Appointment of Counsel. ECF No. 52. Plaintiff seeks to convert his individual claims into

9 a class action, and argues that counsel is necessary due to the complexity of the case and

10 due to Plaintiff’s difficulty locating additional plaintiffs and evidence. Id. On

11 January 23, 2023, Defendant filed a notice informing the Court that he opposes Plaintiff’s

12 motion. ECF No. 54. Defendant requests a briefing schedule for the filing of his opposition,

13 “to avoid any ambiguity regarding this motion being construed as an ex parte application

14 that is unopposed.” Id. In its discretion, to avoid delay, the Court takes Plaintiff’s motion

15 under submission without an opposition.

16 A. Legal Standard

17 There is no constitutional right to appointment of counsel in a civil case, unless an

18 indigent litigant’s physical liberty is at stake. Lassiter v. Dep’t. of Soc. Servs., 452 U.S. 18,

19 25 (1981); see, e.g., United States v. Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996)

20 (collecting cases to show that it is “well-established that there is generally no constitutional

21 right to counsel in civil cases”). Additionally, there is no constitutional right to a court-

22 appointed attorney in cases filed by inmates arising under 42 U.S.C. § 1983. Storseth v.

23 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see, e.g., Thornton v. Schwarzenegger, No.

24 10cv1583-BTM-RBB, 2011 WL 90320, at *1 (S.D. Cal. Jan. 11, 2011).

25 Nevertheless, courts have discretion to request legal representation for “any person

26 unable to afford counsel.” See 28 U.S.C. § 1915(e)(1); see also Terrell v. Brewer, 935 F.2d

27 1015, 1017 (9th Cir. 1991). Courts have required that plaintiffs demonstrate they are

28 indigent and that they have made a reasonably diligent effort to secure counsel before they

1 are eligible for an appointed attorney. Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D. Cal.

2 1993) (extending the “reasonably diligent effort” standard used in Bradshaw v. Zoological

3 Soc’y of San Diego, 662 F.2d 1301, 1319 (9th Cir. 1981) to requests made pursuant to 28

4 U.S.C. § 1915); see, e.g., Verble v. United States, No. 07cv0472 BEN-BLM, 2008 WL

5 2156327, at *2 (S.D. Cal. May 22, 2008).

6 But even after a plaintiff satisfies the two initial requirements of indigence and a

7 diligent attempt to obtain counsel, “he is entitled to appointment of counsel only if he can

8 [also] show exceptional circumstances.” Bailey, 835 F. Supp. at 552 (citing Wilborn v.

9 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). Finding exceptional circumstances

10 entails “an evaluation of both the ‘likelihood of success on the merits and the ability of the

11 plaintiff to articulate his claims pro se in light of the complexity of the legal issues

12 involved.’ Neither of these issues is dispositive and both must be viewed together before

13 reaching a decision.” Terrell, 935 F.2d at 1017 (quoting Wilborn, 789 F.2d at 1331); see

14 also Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

15 B. Discussion

16 First, the Court examines the threshold requirements that Plaintiff is indigent and

17 has made a reasonably diligent effort to secure counsel. Here, the Court acknowledged

18 Plaintiff’s indigence when it granted Plaintiff’s motion to proceed in forma pauperis. ECF

19 No. 4 at 2–3. However, Plaintiff does not include any information in his motion about

20 whether he has attempted to secure counsel on his own. Requiring that litigants “make a

21 reasonably diligent effort to secure counsel before asking the court to appoint counsel for

22 them . . . is ‘not [to] suggest that a plaintiff should be required to exhaust the legal directory

23 before a court could appoint him an attorney. [H]owever, a person’s diligence in attempting

24 to obtain a lawyer to assist him may properly be considered by the district court in assessing

25 the justness of the application for counsel.’” Moore v. Raught, No. 07-03836-VBF-JPR,

26 2014 WL 1795138, at *7 (C.D. Cal. Mar. 17, 2014) (brackets in original) (quoting Caston

27 v. Sears, Roebuck & Co., 556 F.2d 1305, 1309 (5th Cir. 1977)). Here, “Plaintiff’s lack of

28 funds alone does not demonstrate that efforts to secure counsel necessarily would be

1 futile.” Vera v. Gipson, No. 13cv870-AWI-MJS-PC, 2014 WL 807051, at *5 (E.D. Cal.

2 Feb. 28, 2014).

3 Though Plaintiff did not satisfy a threshold requirement, for completeness, the Court

4 will proceed to the next step of the analysis to determine whether Plaintiff can show

5 exceptional circumstances justifying court-appointed counsel by examining the likelihood

6 of Plaintiff succeeding on the merits and his ability to proceed without counsel. See, e.g.,

7 Moore, 2014 WL 1795138, at *4–8 (examining plaintiff’s likelihood of success on the

8 merits and ability to articulate his claims pro se, even though he did “not provide[] evidence

9 documenting any efforts he made to secure counsel before filing the instant motion”);

10 Verble, 2008 WL 2156327, at *2 (examining whether plaintiff demonstrated exceptional

11 circumstances, while acknowledging that “[Plaintiff]’s request for appointment of counsel

12 should be denied because he has failed to show that he made a reasonably diligent effort to

13 secure counsel.”).

14 1. Likelihood of Success on the Merits

15 “A plaintiff that provides no evidence of his likelihood for success at trial fails to

16 satisfy the first factor of the [exceptional circumstances] test.” Torbert v. Gore, No.

17 14cv2911-BEN-NLS, 2016 WL 1399230, at *1 (S.D. Cal. Apr. 8, 2016). Here, Plaintiff

18 has not offered evidence in his motion suggesting that he is likely to succeed on the merits.1

19 Additionally, there is little before the Court regarding the merits of Plaintiff’s case, other

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1 With his motion, Plaintiff includes a declaration from Gregory Hunter. ECF No. 52 at 6.

23 However, the Court concludes that the declaration is meant to support Plaintiff’s claim that

his case should be certified as a class action, rather than to support the allegations in his

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complaint and his likelihood to succeed on the merits. For example, though both Plaintiff’s

25 operative amended complaint and Mr. Hunter’s declaration attest to there being loud

banging by mentally ill inmates which impeded their sleep, Plaintiff’s complaint alleges

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Eighth Amendment violations occurring between July 2019 and July 2020, while

27 Mr. Hunter’s representations refer to conditions between March 2021 and June 2021.

Compare ECF No. 8 at 4–7 with ECF No. 53 at 6.

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1 than assertions in the operative complaint. Thus, at this early stage of the case, when the

2 parties have not yet proffered evidence to the Court in support of their claims and defenses,

3 the Court cannot find that Plaintiff is likely to succeed on the merits. See Arellano v.

4 Blahnik, No. 16cv2412-CAB-RNB, 2018 WL 4599697, at *2 n.1 (S.D. Cal. Sept. 25, 2018)

5 (denying motion for appointment of counsel because “[a]lthough plaintiff’s [] claim

6 survived defendant’s motion to dismiss, it is still too early to determine the likelihood of

7 success on the merits. Without more, it is not certain whether plaintiff’s claim will survive

8 summary judgment.”); Garcia v. Smith, No. 10cv1187-AJB-RBB, 2012 WL 2499003, at

9 *3 (S.D. Cal. June 27, 2012) (denying motion for appointment of counsel even though

10 plaintiff had survived a motion to dismiss, because it was too early to determine whether

11 any of plaintiff’s claims would survive a motion for summary judgment).

12 2. Ability to Articulate Claims Pro Se

13 As to the second factor, Plaintiff cites barriers to successfully articulating his claims,

14 including the need for significant discovery and investigation and his desire to convert his

15 case from an individual action to a class action. ECF No. 52. However, Plaintiff fails to

16 demonstrate an inability to represent himself beyond the ordinary burdens encountered by

17 incarcerated plaintiffs representing themselves pro se.

18 First, Plaintiff asserts that he “notified the Defendants of 48 witnesses, most of

19 whom are staff members in the jail. [Plaintiff] do[es] not have access to them, an attorney

20 will.” ECF No. 52 at 3. However, the need for research, investigation, and discovery is

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2 That certain claims in Plaintiff’s amended complaint survived the Court’s screening

23 process (ECF No. 9) and Defendants’ motion to dismiss (ECF No. 22) does not

demonstrate that Plaintiff is likely to succeed at trial. McGinnis v. Ramos, No. 15cv2812-

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JLS-JLB, 2017 U.S. Dist. LEXIS 58507, at *6–7 (S.D. Cal. Apr. 17, 2017) (“The Rule

25 12(b)(6) standard tests not whether a plaintiff will ultimately prevail on his alleged claim

but whether he is entitled to offer evidence to support his claim. [] Thus, the Court’s

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screening process and Defendant’s motion to dismiss did not test the merits of Plaintiff’s

27 claim but rather only whether Plaintiff adequately stated a claim that could potentially have

merit.”) (internal citation omitted).

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1 common to most litigation and does not automatically qualify the issues in a case as

2 complex. See Wilborn, 789 F.2d at 1331; Miller v. LaMontagne, No. 10cv702-WQH-BGS,

3 2012 WL 1666735, at *1–2 (S.D. Cal. May 11, 2012) (concluding that plaintiff’s

4 arguments “that this case will involve research and investigation are not based on the

5 complexity of the legal issues involved, but rather on the general difficulty of litigating pro

6 se”); see also Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (holding that while a

7 pro se inmate might fare better with counsel during discovery, this is not the test for

8 determining whether to appoint counsel); Eusse v. Vitela, No. 13cv916-BEN-NLS, 2015

9 WL 4404865, at *2 (S.D. Cal. July 16, 2015) (“the need for discovery or difficulties

10 developing the factual record do not constitute the type of ‘exceptional circumstances’

11 required for appointment of counsel”). Whether a litigant would have fared better with

12 counsel is not the test for appointment of counsel. Thornton, 2010 WL 3910446, at *5. The

13 discovery concerns Plaintiff raises in his motion “do not present ‘exceptional

14 circumstances,’ but rather illustrate the difficulties any prisoner would have litigating pro

15 se.” Eusse, 2015 WL 4404865, at *2.

16 Second, Plaintiff concedes that “a pro se prisoner cannot be allowed to represent

17 other prisoners in a class action suit.” ECF No. 52 at 1; see Oxendine v. Williams, 509 F.2d

18 1405, 1407 (4th Cir. 1975) (“It is plain error to permit [an] imprisoned litigant who is

19 unassisted by counsel to represent his fellow inmates in a class action.”); Wilson v. Merritt,

20 No. 22cv455-AWI-CDB-PC, 2023 U.S. Dist. LEXIS 11164, at *3–4 (E.D. Cal. Jan. 20,

21 2023) (collecting cases). Thus, since he has two other prisoners who would like to join his

22 case, Plaintiff seeks counsel to pursue his case as a class action because “now, [I have] 3

23 people[, but a]fter counsel is appointed, I’m sure he or she can gather more plaintiffs as

24 they will have better access than me.” Id. at 2. However, a desire to pursue a class action

25 does not, by itself, entitle a plaintiff to appointment of counsel. Goolsby v. Cate, No.

26 13cv119-GSA-PC, 2013 WL 2403385, at *2 (E.D. Cal. May 30, 2013) (explaining that

27 “Plaintiffs’ desire to pursue class-action relief does not present an ‘exceptional

28 circumstance;’ if it did, every pro se prisoner seeking class-action relief would

1 automatically be entitled to the appointment of counsel.”); see, e.g., Perondi v. Schriro,

2 370 F. App’x 805, 805 (9th Cir. 2010) (affirming district court’s denial of plaintiff’s motion

3 to appoint counsel and to certify a class, explaining that pro se prisoner “did not

4 demonstrate extraordinary circumstances” and “was not an adequate class representative

5 … able to ‘fairly and adequately protect the interests of the class’ … [because he] lacks

6 authority to appear as an attorney for others”) (internal citations omitted).

7 Further, the deadline to add co-plaintiffs or to amend the complaint has long since

8 passed. See ECF No. 29 at 1 (deadline to “to join other parties, to amend the pleadings, or

9 to file additional pleadings” was July 29, 2022). Plaintiff has not requested to extend the

10 deadline, and even if the Court construed the instant motion as a request for extension,

11 Plaintiff has not shown good cause to extend the deadline, particularly considering that

12 many discovery deadlines having already passed. Id. (“The dates and times set forth herein

13 will not be modified except for good cause shown.”); ECF No. 34 (fact discovery deadline

14 was December 23, 2022); ECF No. 29 (expert designation deadlines were November 18,

15 2022, and December 2, 2022, and expert disclosure deadlines were January 6, 2023, and

16 January 20, 2023); see Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.

17 1992) (“the focus of the [good cause] inquiry is upon the moving party’s reasons for

18 seeking modification. [] If that party was not diligent, the inquiry should end.”); Merck v.

19 Swift Transp. Co., No. CV-16-01103-PHX-ROS, 2018 WL 4492362, at *2 (D. Ariz.

20 Sept. 19, 2018) (“a party demonstrates good cause by acting diligently to meet the original

21 deadlines set forth by the court.”).

22 Additionally, the Court understands the factual basis for Plaintiff’s claims and the

23 relief sought. Plaintiff has demonstrated that he has a good grasp of litigation procedure,

24 as evidenced by his filings with this Court, which survived screening and Defendant’s

25 motion to dismiss. Plaintiff has ably represented himself thus far by filing an amended

26 complaint, a motion for an extension of time to oppose Defendant’s motion to dismiss, an

27 opposition to Defendant’s motion to dismiss, a notice of change of address, a motion to

28 compel production of documents, an opposition to Defendant’s motion to compel, and the

1 instant motions. See ECF Nos. 8, 15, 17, 19, 35, 41, 52, 53, 56. Such circumstances do not

2 indicate to the Court that appointment of counsel is necessary at this time.

3 The Court does not doubt that Plaintiff, like most pro se litigants, finds it difficult to

4 articulate his claims and would be better served with the assistance of counsel. It is for this

5 reason that in the absence of counsel, federal courts employ procedures that are highly

6 protective of a pro se litigant’s rights. See Haines v. Kerner, 404 U.S. 519, 520 (1972)

7 (holding that the pleadings of a pro se inmate must be held to less stringent standards than

8 formal pleadings drafted by lawyers). In fact, where a plaintiff appears pro se in a civil

9 rights case, the court must construe the pleadings liberally and afford the plaintiff any

10 benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th

11 Cir. 1988). Thus, as long as a pro se litigant is able to articulate his claim, as Plaintiff is

12 here, the second “exceptional circumstances” factor that might support the appointment of

13 counsel is not met.

14 C. Summary

15 Although Plaintiff is indigent, he has failed to show that he made reasonable efforts

16 to obtain counsel or that exceptional circumstances require appointment of counsel. Thus,

17 the Court DENIES Plaintiff’s Motion for Appointment of Counsel (ECF No. 52) without

18 prejudice.3

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II. PLAINTIFF’S MOTION TO SERVE INTERROGATORIES

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On January 17, 2023, Plaintiff filed his motion to serve interrogatories and requests

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for admission to various non-parties. ECF No. 53. On January 23, 2023, Defendant filed a

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notice informing the Court that he opposes Plaintiff’s motion. ECF No. 55. Defendant

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requests a briefing schedule for the filing of his opposition, “to avoid any ambiguity

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regarding this motion being construed as an ex parte application that is unopposed.” Id. In

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its discretion, to avoid delay, the Court takes Plaintiff’s motion under submission without

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3 Because Plaintiff’s motion is denied without prejudice to refiling, Plaintiff is free to seek

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1 an opposition.

2 In his motion, Plaintiff seeks permission to serve interrogatories on another inmate,

3 sixteen correctional facility employees, and two former correctional facility psychologists.

4 Id. at 2–3. Plaintiff contends that these non-parties, especially the two psychologists, are

5 vital witnesses because they personally experienced the conditions he alleges in his

6 complaint. Id. at 4.

7 “The Federal Rules of Civil Procedure distinguish between parties and non-parties

8 in establishing available discovery devices. Some rules … permit discovery only from a

9 party, while others permit discovery from non-parties, but may impose additional burdens.”

10 Jules Jordan Video, Inc. v. 144942 Canada, Inc., 617 F.3d 1146, 1158 (9th Cir. 2010); see,

11 e.g., FED. R. CIV. P. 33(b)(1) (limiting interrogatories to parties); FED. R. CIV. P. 36(a)(1)

12 (limiting requests for admissions to parties); FED. R. CIV. P. 31(a)(1) (deposition by written

13 questions may be served on any person); FED. R. CIV. P. 45(a)(1)(A)(iii) (subpoena to

14 produce documents may be served on any person). “While discovery is a valuable right

15 and should not be unnecessarily restricted, the ‘necessary’ restriction may be broader when

16 a nonparty is the target of discovery.” Dart Indus. Co., Inc. v. Westwood Chem. Co., Inc.,

17 649 F.2d 646, 649 (9th Cir. 1980); Soto v. Castlerock Farming and Transp., Inc., 282

18 F.R.D. 492, 505 (E.D. Cal. 2012) (explaining that “there is a preference for parties to obtain

19 discovery from one another before burdening non-parties with discovery requests” and

20 collecting cases).

21 Here, Plaintiff requests to serve interrogatories on non-parties, which is not

22 permitted by the Federal Rules. FED. R. CIV. P. 33(b)(1); compare ECF No. 53 at 2 (“…the

23 non-party people I wish to serve interrogatories upon are…) with Jacobsen v. California,

24 No. 14cv108-JLT-PC, 2017 U.S. Dist. LEXIS 5024, at *5 (E.D. Cal. Jan. 12, 2017)

25 (denying pro se prisoner’s motion to serve interrogatories on non-party witnesses). As

26 such, Plaintiff’s request to serve interrogatories on non-parties is DENIED.

27 Plaintiff also mentioned seeking “a subpoena duces tecum to serve interrogatories

28 and request for admissions upon non-part[ies.]” ECF No. 53 at 2. However, a subpoena

1 may command a non-party only to: (1) “attend and testify;” (2) “produce designated

2 documents,4 electronically stored information, or tangible things in that person’s

3 possession, custody, or control;” or (3) “permit the inspection of premises.” FED. R. CIV.

4 P. 45(a)(1)(A)(iii). Thus, a subpoena duces tecum does not include provisions for

5 interrogatories or requests for admission. As such, Plaintiff’s request to use a Rule 45

6 subpoena to serve interrogatories or requests for admission on non-parties is DENIED.

7 In an effort to liberally construe Plaintiff’s motion (see Karim-Panahi, 839 F.2d at

8 623), the Court notes that Rule 31 provides for depositions by written questions—similar

9 in form to interrogatories—to parties and non-parties. FED. R. CIV. P. 31(a)(1). In the

10 instant matter, Plaintiff must obtain leave of Court before serving his written questions

11 because Defendant opposes Plaintiff’s request and Plaintiff seeks to ask questions of

12 nineteen people. FED. R. CIV. P. 31(a)(2)(A)(i) (“A party must obtain leave of court … if

13 the parties have not stipulated to the depositions and [] the deposition would result in more

14 than 10 depositions being taken”). Thus, the Court will consider whether Plaintiff’s request

15 is consistent with Rule 26. FED. R. CIV. P. 31(a)(2)(A)(i) (“the court must grant leave [to

16 take depositions by written questions] to the extent consistent with Rule 26(b)(1) and (2)”).

17 Pursuant to Rule 26(b)(1), parties may obtain discovery regarding:

18 any nonprivileged matter that is relevant to any party’s claim or defense and

proportional to the needs of the case, considering the importance of the issues

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at stake in the action, the amount in controversy, the parties’ relative access

20 to relevant information, the parties’ resources, the importance of the discovery

in resolving the issues, and whether the burden or expense of the proposed

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discovery outweighs its likely benefit.

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4 The Court reiterates that discovery of documents from Defendant is not accomplished

25 pursuant to Rule 45, which governs discovery of documents in the possession, custody, or

control of non-parties; discovery of documents from Defendant is governed by Rule 34.

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See Kitchens v. Tordsen, No. 1:12cv105-AWI-MJS-PC, 2015 WL 1011711, at *2 (E.D.

27 Cal. Mar. 4, 2015) (“The Court will only consider issuing a [Rule 45] subpoena if the

documents sought from the non-party are not otherwise available to Plaintiff and cannot be

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1 FED. R. CIV. P. 26(b)(1). However, pursuant to Rule 26(b)(2),

2 the court must limit the frequency or extent of discovery otherwise allowed

by these rules … if it determines that: (i) the discovery sought is unreasonably

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cumulative or duplicative, or can be obtained from some other source that is

4 more convenient, less burdensome, or less expensive; [or] (ii) the party

seeking discovery has had ample opportunity to obtain the information by

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discovery in the action.

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FED. R. CIV. P. 26(b)(2)(C). Since Plaintiff did not include the text of the interrogatories or

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written questions he planned to serve on the non-parties, the Court is unable to conclude

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that the discovery sought is relevant or proportional. Further, even if Plaintiff had attached

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the proposed written questions, his request would still fail. The deadline to complete fact

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discovery expired on December 23, 2022. ECF No. 34. Because Plaintiff had nearly six

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months to complete fact discovery, and never requested a continuance of the discovery

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deadlines during that time, the Court finds that he “had ample opportunity to obtain the

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information.” FED. R. CIV. P. 26(b)(2)(C)(ii); see ECF No. 29 (Scheduling Order, issued

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on June 30, 2022); cf. Martin v. McNut, No. CIV-S-08-1578-CMK-P, 2011 WL 4543039,

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at *2 (E.D. Cal. Sept. 27, 2011) (denying pro se prisoner’s motion for extension of

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discovery deadline to conduct deposition by written questions filed after the fact discovery

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deadline had passed because “Plaintiff’s request for additional time was not filed until after

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the discovery deadline had expired. Such a belated request, which failed to show good

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cause as to why the written deposition could not have been conducted during the open

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discovery time, is insufficient to warrant an additional extension of time.”).

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Thus, since Plaintiff’s request is not “consistent with Rule 26(b)(1) or (2),” the Court

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will not grant leave to take nineteen depositions by written questions and Plaintiff’s request

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is DENIED. See cf. Jacobsen, 2017 U.S. Dist. LEXIS 5024, at *5 (“Plaintiff may not serve

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interrogatories on individuals who are not parties to this action. However, … Plaintiff may

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… subpoena them to testify if/when this action proceeds to trial.”).

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The Court encourages the parties to work together to ensure that this matter is

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resolved on the merits and will hear argument regarding the case schedule at the upcoming

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1 discovery conference on February 6, 2023. See, e.g., Jones v. Gardiner, No. 14cv2477-

2 MMA-MDD, 2017 U.S. Dist. LEXIS 76156, at *3–4 (S.D. Cal. May 18, 2017) (discussing

3 whether “additional fact discovery will assist in resolving the matter on the merits and will

4 not prejudice Defendant.”).

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III. PLAINTIFF’S MOTION TO REOPEN DISCOVERY AND APPOINT

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EXPERT WITNESS

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On January 24, 2023, Plaintiff filed his motion reopen discovery and appoint an

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expert witness. ECF No. 56. On January 31, 2023, Defendant filed a notice informing the

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Court that he opposes Plaintiff’s motion. ECF No. 61. Defendant requests a briefing

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schedule for the filing of his opposition, “to avoid any ambiguity regarding this motion

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being construed as an ex parte application that is unopposed.” Id. In its discretion, to avoid

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delay, the Court takes Plaintiff’s motion under submission without an opposition.

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A. Legal Standard

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An expert witness may testify to help the trier of fact determine the evidence or a

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fact at issue. FED. R. EVID. 702 (“A witness who is qualified as an expert by knowledge,

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skill, experience, training, or education may testify… if: [] the expert’s scientific, technical,

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or other specialized knowledge will help the trier of fact to understand the evidence or to

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determine a fact in issue ….”). Federal Rule of Evidence 706 authorizes the Court, in its

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discretion, to appoint an expert witness. FED. R. EVID. 706(a); Walker v. Am. Home Shield

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Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999). Such an appointment is

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generally appropriate when the evidence to be presented at trial is complex. Levi v. Dir. of

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Corr., No. CIV-S-02-0910-LKK-KJM-P, 2006 WL 845733, at *1 (E.D. Cal. Mar. 31,

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2006); see Ledford v. Sullivan, 105 F.3d 354, 358-59 (7th Cir. 1997) (affirming denial of

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motion to appoint an expert because the prisoner’s Eighth Amendment deliberate

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indifference case was not complex, explaining that “determining deliberate indifference

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was not so complicated that an expert was required to establish Ledford’s case [because]

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the test to decide whether a prison official acted with deliberate indifference is a subjective

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1 However, Rule 706 “is not a means to avoid the in forma pauperis statute [28 U.S.C.

2 § 1915] and its prohibition against using public funds to pay for the expenses of witnesses.”

3 Brooks v. Tate, No. 1:11cv1503-AWI-DLB-PC, 2013 WL 4049043, at *1 (E.D. Cal. Aug.

4 7, 2013) (internal citations omitted); see Tedder v. Odel, 890 F.2d 210, 211–12 (9th Cir.

5 1989) (holding that § 1915 does not authorize waiver of witness fees or expenses on behalf

6 of an indigent litigant). Further, Rule 706 “does not contemplate court appointment and

7 compensation of an expert witness as an advocate for one of the parties.” Faletogo v. Moya,

8 No. 12cv631-GPC-WMc, 2013 WL 524037, at *2 (S.D. Cal. Feb. 12, 2013); see, e.g.,

9 Brooks, 2013 WL 4049043 at *2 (denying motion to appoint expert, explaining that,

10 although plaintiff requested an expert be appointed “to ‘avoid the blatant potential for bias

11 from the one sided testimony of the doctor defendant[,]’ [a]voiding bias or otherwise

12 assisting one party is not the purpose of Rule 706.”); Walker v. Woodford, No. 05cv1705-

13 LAB-NLS, 2008 WL 793413, at *1 (S.D. Cal., Mar. 24, 2008) (denying motion to appoint

14 an expert because, in part, “the Court cannot subsidize Plaintiff’s litigation costs by

15 appointing an expert to help only him”).

16 B. Discussion

17 In his motion, Plaintiff requests a court-appointed expert for three main reasons:

18 (1) Plaintiff is unable to obtain his own expert because he cannot afford one, (2) the medical

19 issues in the case are complex, and (3) because he disagrees with the report produced by

20 Defendant’s expert, providing arguments and exhibits to refute the expert’s findings. ECF

21 No. 56. Plaintiff explains that he “can call [Defendant and his experts] liars until [he is]

22 blue in the face, but it is easier to just prove them wrong and prove them to be liars.” Id.

23 at 5.

24 The Court is not persuaded that an expert should be appointed in this case. First,

25 Plaintiff is asking the Court to appoint an expert witness to advocate on Plaintiff’s behalf.

26 As noted above, Rule 706 does not authorize the Court to appoint an expert to advocate for

27 one party. Hernandez v. Ogboehi, No. 1:20cv1019-ADA-SAB-PC, 2023 WL 113789, at

28 *1 (E.D. Cal. Jan. 5, 2023) (noting that the “purpose of court-appointed expert is to assist

1 the trier of fact, not to serve as an advocate for a particular party” and collecting cases).

2 Moreover, to the extent Plaintiff is concerned the Defendant’s expert witnesses may be

3 biased or is presenting incorrect information, Plaintiff may present evidence at trial by

4 cross-examination of Defendant’s expert witnesses on the stand. Faletogo, 2013 WL

5 524037, at *2 (“Plaintiff is well-situated to testify to the extent of his injuries and can

6 further support his testimony with documentary evidence from his medical record.”).

7 Second, Plaintiff’s inability to pay for an expert is not a basis for the Court to appoint

8 experts within its discretion. Rule 706 is not meant to be used to avoid § 1915’s prohibition

9 of the use of public funds to pay witness fees for indigent plaintiffs, nor does Rule 706

10 provide for the Court to appoint an expert and provide compensation in order for that expert

11 to advocate on behalf of the plaintiff. Snow v. Mar, 785 F. App’x 465, 466 (9th Cir. 2019)

12 (A “court’s decision whether to appoint an expert is discretionary,” but it is well settled

13 that “there is no statutory authorization for a court-appointed investigator for civil litigants

14 proceeding in forma pauperis.”); Witkin v. Lotersztain, No. 2:19cv406-TLN-KJN-P, 2022

15 WL 7099719, at *2–3 (E.D. Cal. Oct. 12, 2022) (“28 U.S.C. § 1915 does not authorize the

16 court to appoint an expert for plaintiff’s benefit to be paid by the court.”) (internal quotation

17 omitted).

18 Third, though Plaintiff contends that “there are numerous factual questions requiring

19 an expert witness[,]” and “clearly there are many very difficult medical and mental health

20 issues that require an expert witness,” (see ECF No. 56 at 2, 10), Plaintiff has not

21 adequately explained why an appointed neutral expert is necessary to assist the Court in

22 understanding the case. Plaintiff has not shown that his claims of deliberate indifference

23 via conditions of confinement are of such a complex nature that the trier of fact requires

24 scientific, technical, or otherwise specialized knowledge regarding his injuries or damages.

25 See, e.g., Hernandez, 2023 WL 113789, at *1 (“There is no showing and the record does

26 not support that Plaintiff’s deliberate indifference claim is factually or legally complex

27 such that the appointment of a neutral expert witness is required”); Thunderbird v. Or. State

28 Dep’t of Corr., No. CV08-1404-PK, 2011 WL 2971798, at *17 (D. Or. June 28, 2011)

1 (“The issues in this case are not particularly complex, as they center upon the quality of

2 Thunderbird’s medical treatment and conditions of confinement while in ODOC custody.

3 Thunderbird has presented nothing to justify the appointment of an expert to help the court

4 understand the issues.”), adopted, 2011 WL 2970893 (D. Or. July 20, 2011).

5 C. Summary and Additional Considerations

6 Therefore, for the aforementioned reasons, Plaintiff’s Motion for Appointment of

7 Expert Witness is DENIED.

8 Relatedly, Plaintiff requests that the Court reopen discovery so that he can obtain

9 certain medical records to refute Defendant’s expert report. ECF No. 56 at 5. The Court

10 notes that the expert discovery deadline has not yet passed. See ECF No. 29 at 3 (All expert

11 discovery shall be completed by all parties by February 10, 2023”). Thus, Plaintiff’s

12 request is DENIED AS MOOT. Insofar as Plaintiff is requesting to reopen fact discovery,5

13 though the Court is inclined to rule that Plaintiff has not shown the diligence necessary to

14 find good cause to extend the discovery deadline, the Court DEFERS ruling on that issue

15 until the upcoming discovery conference on February 6, 2023, where the Court will discuss

16 the matter with both sides.

17 IV. CONCLUSION

18 For the reasons set forth above, the Court ORDERS the following:

19 1. Plaintiff’s Motion for Appointment of Counsel (ECF No. 52) is DENIED

20 without prejudice.

21 2. Plaintiff’s Motion to Serve Interrogatories (ECF No. 53) is DENIED without

22 prejudice.

23 3. Plaintiff’s Motion to Appoint Expert Witness (ECF No. 56) is DENIED

24 without prejudice.

25 / /

26

27

5 See ECF No. 56 at 10 (“The Defendant told me discovery is closed and refused to answer

28

1 4. Plaintiff's Motion to Reopen Expert Discovery (ECF No. 56) is DENIED AS

2 || MOOT. Insofar as Plaintiff is requesting to reopen fact discovery, the Court DEFERS

3 || ruling on that issue until the upcoming discovery conference on February 6, 2023.

4 5. The Court ORDERS Defendant’s counsel and the Valley State Prison

5 || Litigation Coordinators to ensure that a copy of this Order is provided to Plaintiff

6 ||before the February 6, 2023, Discovery Conference—such as by emailing it to the

7 || litigation coordinator for printing—since Plaintiff is unlikely to receive the mailed copy in

8 || time.

9

10 IT IS SO ORDERED.

11 ||Dated: February 1, 2023

_ArwiornH. Kuler

Honorable Allison H. Goddard

13 United States Magistrate Judge

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