Opinion
3:10-cv-00488-HDM (RAM)
08-29-2011
ROBERT MCGUIRE, Plaintiff, v. THE STATE OF NEVADA, et. al. Defendants.
ORDER
Before the court is Plaintiff's Motion for a Court Appointed Expert. (Doc. # 37.)Defendants opposed (Doc. # 38) and Plaintiff replied (Doc. #39).
Refers to court's docket number.
I. BACKGROUND
At all relevant times, Plaintiff Robert McGuire (Plaintiff) was in custody of the Nevada Department of Corrections (NDOC). The events that form the basis of Plaintiff's complaint took place while he was housed at Ely State Prison (ESP). (Pl's Compl. (Doc. #10).) He is currently housed at High Desert State Prison (HDSP). (See Doc. # 24.) Plaintiff, a pro se litigant, brings this action pursuant to 42 U.S.C. § 1983. (Doc. # 10.) Defendants are Tom Stubbs and David Drummond. On screening, the court determined that Plaintiff could proceed with his Eighth Amendment excessive force claim against Defendants. (See Doc. 9.)
Plaintiff named Michael Lee as a defendant, but there is no record that he was ever served with the summons and complaint.
Plaintiff moves the court to appoint a medical expert witness pursuant to Rule 706(a) of the Federal Rules of Evidence (FRE). (Doc. # 37.) He asserts a court appointed medical expert is warranted because he does not understand his extensive medical records, and a medical expert will be able to explain his injuries and treatment to the jury. (Id.)For the reasons set forth below, Plaintiff's motion is denied.
II. DISCUSSION
FRE 706 allows the district court to appoint a neutral expert on its own motion, or on the motion of any party. Fed.R.Evid. 706. The determination to appoint an expert rests solely in the court's discretion and is to be informed by such factors as the complexity of the matters to be determined and the court's need for a neutral, expert review. See Ledford v. Sullivan, 105 F.3d 354, 358-59 (7th Cir. 1997). The appointed expert is entitled to reasonable compensation, and in a civil case the compensation is "paid by the parties in such proportion and at such time as the court directs[.]" Fed.R.Evid. 706(b). However, where, as here, one of the parties is indigent, the court may apportion all the cost to one side. McKinney v. Anderson, 924 F.2d 1500, 1510-11 (9th Cir. 1991), vacated and remanded on other grounds, 502 U.S. 903 (1991) (reasoning that allowing court-appointed experts only when both sides are able to pay their respective shares would hinder a district court from appointing an expert witness, "even when the expert would significantly help the court").
Plaintiff argues that a medical expert is necessary to decipher and help him understand his complex medical records, to explain his injuries and treatment to the jury, to clarify planned evidence and exhibits, and to show there were no preexisting conditions. (Doc. # 37 at 2.) The court disagrees. Appointment of an expert may be appropriate when the expert will assist the trier of fact to understand the evidence or decide a fact in issue. See Ledford, 105 F.3d at 358-59. At present, this does not appear to be a complex case requiring an expert's assistance. The Eighth Amendment prohibits the imposition of cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 102 (1976). "[W]henever prison officials stand accused of using excessive physical force in violation of the [Eighth Amendment], the core judicial inquiry is...whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (citations omitted); see also Whitley v. Albers, 475 U.S. 312,320-21 (1986); Watts v. McKinney, 394 F.3d 710, 711 (9th Cir. 2005). In determining whether force is excessive, the court looks at the extent of injury, "the need for application of force, the relationship between that need and the amount of force used, the threat 'reasonably perceived by the responsible officials,' and 'any efforts made to temper the severity of a forceful response.'" Hudson, 503 U.S. at7 (quoting Whitley, 475 U.S. at 321). There is no need to show a serious injury as a result of the force, but the lack of such injury is relevant to the inquiry. See Hudson, 503 U.S. at 7-9. The tier-of-fact does not need a medical expert to determine whether the alleged force imposed on Plaintiff is excessive. In other words, it is not apparent that a jury would have to consider complex questions concerning Plaintiff's medical diagnosis. Instead, it appears that the trier-of-fact will be able to evaluate the alleged use of force without the aid of a medical expert. Plaintiff is not requesting an expert because one is needed to assist the court or fact finder. Rather, Plaintiff requests an expert to assist himself. This falls outside the the scope of appointment of an expert under FRE 706.
Moreover, Plaintiff is not entitled to the appointment of an expert at Defendants' expense simply because he has been granted in forma pauperis status. The granting of in forma pauperis status only adjusts the amount of the filing fee a plaintiff must prepay. See Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993) (affirming magistrate's finding that the in forma pauperis statute does not waive payment of fees or expenses for witnesses). The court declines to exercise its discretion under FRE 706(b) to appoint an expert witness and apportion related costs to Defendant. The appointment of such an expert is to assist the trier of fact, not to select an advocate for the plaintiff. Students of California School for the Blind v. Honig, 736 F.2d 538, 549 (9th Cir. 1984), vacated on other grounds, 471 U.S. 148 (1985).
III. CONCLUSION
IT IS HEREBY ORDERED that Plaintiffs Motion for a Court Appointed Expert (Doc. # 37) is DENIED.
______________________________________
UNITED STATES MAGISTRATE JUDGE