Carley v. Gentry

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 ELIZABETH CARLEY, 5 Plaintiff, 2:17-cv-02670-MMD-VCF

6 vs. ORDER WARDEN JO GENTRY, et al., 7 Defendants. 8 Before the Court is the Plaintiff’s Motion to Appoint Expert Witness. (ECF No. 65). Defendants 9 have filed an opposition and plaintiff filed a reply. (ECF No. 71 and 73). 10 Plaintiff requests the appointment of an expert pursuant to Rules 702 and 706 of the Federal Rules 11 of Evidence to conduct an audit of the prison law library at Florence McClure Women’s Correctional 12 Center and to “gather. . . privileged documents.” (ECF No. 65 at 1-2). 13 LEGAL STANDARD 14 The in forma pauperis statute, 28 U.S.C. § 1915, does not provide for the appointment of expert 15 witnesses to aid prisoners or other indigent litigants. Hannah v. United States, 523 F.3d 597, 601 (5th Cir. 16 2008) (quoting Pedraza v. Jones, 71 F.3d 194, 196 (5th Cir.1995)); see also Faletogo v. Moya, 2013 WL 17 524037, at *2 (S.D. Cal. Feb. 12, 2013). Instead, the district court has discretion to appoint an expert 18 pursuant to Rule 706(a) of the Federal Rules of Evidence which reads, in part, “[t]he court may on its own 19 motion or on the motion of any party enter an order to show cause why expert witnesses should not be 20 appointed." Lopez v. Scribner, 2007 WL 1215420 (E.D. Cal. Apr. 24, 2007) (citing Fed. R. Evid. 706(a); 21 see also Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th 22 Cir.1999)). Appointing expert witnesses under Rule 706 is rare given that the adversary system is usually 23 sufficient to promote accurate fact finding. See 29 FED. PRAC. & PROC. EVID. § 6304 (2d ed.) (“[T]he 24 exercise of Rule 706 powers is rare under virtually any circumstances. 25 1 A Rule 706 expert does not serve as an advocate for any party and each party retains the ability 2 to call its own experts. Fed. R. Evid. 706(e). Rule 706 permits the appointment of an unbiased, neutral 3 expert only if the expert’s opinion would promote accurate fact finding and only where an expert would 4 be particularly helpful evaluating complex or confusing evidence, such as scientific, technical, or other 5 specialized knowledge. Gorton v. Todd, 793 F. Supp.2d 1171, 1179 (E.D. Cal. June 29, 2011; see also 6 Ledford v. Sullivan, 105 F.3d 354, 358-59 (7th Cir. 1997). The court should also consider whether (1) 7 appointment of an expert will promote accurate factfinding; (2) testimony from the parties’ experts is 8 sufficient to reveal the facts; and (3) the claim raises constitutional concerns. Gorton, 793 F Supp. 2d at 9 1171, 1182. A court-appointed expert is entitled to reasonable compensation and, in civil cases, the 10 compensation is paid by the parties in proportion and at such time as the court directs; however, where 11 one party is indigent, the court may apportion all the cost to one side. O’Neill v. Bannister, 2012 WL 12 12542743, at *2 (D. Nev. Aug. 29, 2012). 13 The Court further finds that the issues involved in this action are not particularly complex and, 14 therefore, the appointment of an expert to promote accurate factfinding is not necessary. See Walker v. 15 American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) (finding that 16 district court decision to appoint independent expert to assist court in evaluating contradictory evidence 17 about elusive disease of unknown origin was appropriate). An expert witness may be appropriate if the 18 evidence to be presented at trial is complex. Fed. R. Evid. 702 (“If scientific, technical, or other 19 specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, 20 a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto 21 in the form of an opinion or otherwise ...”). Here, the Court finds that the testimony of a neutral expert in 22 this case is not required to “assist the trier of fact to understand the evidence or to determine a fact in 23 issue.” Fed. R. Evid. 702(a). This issues in this case are not complex, in which that Plaintiff would require 24 the clarification of scientific, technical or specialized evidence. Plaintiff has been quite articulate in her 25 motions. 1 Plaintiff requests the appointment of an expert pursuant to Rules 702 and 706 of the Federal Rules 2 || of Evidence to conduct an audit of the prison law library at Florence McClure Women’s Correctional 3 || Center and to “gather. .. privileged documents.” (ECF No. 65 at 1-2). Plaintiff's concern about obtaining 4 records can likely be addressed through the normal discovery process. 5 Accordingly, 6 IT IS HEREBY ORDERED that Plaintiff's Motion to Appoint Expert Witness (ECF No. 65) is 7 || DENIED. 8 IT IS FURTHER ORDERED that the Plaintiff's Motions to file Enlargements of Time to file 9 || Reply (ECF No. 67 & 72) are GRANTED. 10 DATED this 10th day of April, 2020. i” og saggeS □□□□ “CAMFERENBACH UNITED STATES MAGISTRATE JUDGE

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