10 CHANTELL GOSZTYLA, Case No. 1:22-cv-00610-NODJ-EPG (PC)
11 ORDER GRANTING IN PART Plaintiff, v. ADDITIONAL TIME TO EXCHANGE WEI GU, 14 REQUESTS FOR COUNSEL AND EXPERT WITHOUT PREJUDICE 15 Defendant.
16 ORDER FOR DEFENDANT TO RESPOND 17 WITHIN 14 DAYS
18 (ECF No. 29)
19 Chantell Gosztyla is a state prisoner proceeding pro se and in forma pauperis in this 20 civil rights action filed pursuant to 42 U.S.C. § 1983. On November 17, 2023, the Court issued 21 two orders, one setting a schedule in this case through filing of the dispositive motions (ECF 22 No. 27) (hereinafter, “Scheduling Order”), the other requiring parties to exchange certain 23 documents within sixty days (ECF No. 26) (hereinafter, “Discovery Order”). Plaintiff now 24 requests additional 60 days to respond to the Court’s orders and asks the Court for counsel and 25 experts to assist her. (ECF No. 29). 26 27 28 1 1 For the following reasons, the Court grants Plaintiff’s motion for extension in part, 2 denies requests for counsel and experts without prejudice, and orders Defendant to respond 3 within fourteen days. 5 The Plaintiff states in her motion that the Court ordered parties to exchange documents 6 within 30 days. (ECF No. 29 at 1). However, the Discovery Order requires the parties to 7 exchange documents in sixty days, not thirty. (ECF No. 26 at 2) (“Each party has sixty days 8 from the date of service of this order . . .”). With the order issued on November 17, 2023, the 9 60-day deadline to exchange documents would have been January 16, 2024. 10 However, given Plaintiff’s difficulties with access to legal resources, intervening 11 holidays and corresponding closures and limited staff availability, and potential mail delays, the 12 Court grants in part Plaintiff’s request for extension of time and will allow for additional thirty 13 days to exchange the documents, until February 15, 2024. 14 The Court notes, however, that this deadline applies only to documents that parties 15 currently “have in their possession, custody, or control.” (ECF No. 26 at 2). If Plaintiff 16 currently does not have the documents in her possession and receives them later, per the terms 17 of the Discovery Order, she has thirty days to produce them from the day she receives them. 18 The Discovery Order specifies that “If any party obtains documents and/or other evidence 19 described above later in the case from a third party, that party shall provide all other parties 20 with copies of the documents and/or evidence within thirty days.” (ECF No. 26 at 3). In other 21 words, for documents such as third-party chiropractor medical records, if Plaintiff does not 22 already have them in her possession, Plaintiff does not need to produce them by February 15, 23 2024. If she receives documents falling under the order in the future, Plaintiff will then have 24 thirty days from the day she received them to produce them to opposing counsel. 26 Plaintiff’s motion and exhibits detail difficulties obtaining her own medical records 27 from California Department of Corrections and Rehabilitation (CDCR) and California 28 Correctional Health Care Services. The Court ordered parties to exchange “[a]ll of Plaintiff’s 2 1 medical records related to the incident(s) and/or condition(s) at issue in the case, including 2 those held by Central California Women’s Facility and California Correctional Health Care 3 Services” and ordered defense counsel “to obtain these documents from Plaintiff’s institution(s) 4 of confinement” (ECF No. 26 at 2 & n.1), which is Central California Women’s Facility. 5 In addition, the Court ordered that if “Defendants already have Bray Chiropractic records in 6 their possession, these records must be produced along with other medical records of the 7 Plaintiff.” Id. 8 To the extent Plaintiff provides this information to explain her delay in providing the 9 documents, the Court again states that Plaintiff does not need to provide such documents to 10 opposing counsel unless and until she receives them. Moreover, the Discovery Order 11 specifically states that “Plaintiff does not have to produce information contained in her central 12 file (C-file) to the Defendant.” (ECF No. 26 at 3). Rather, the Court requested that defense 13 counsel to “obtain these documents from Plaintiff’s institution(s) of confinement. If defense 14 counsel is unable to do so, defense counsel should inform Plaintiff that a third-party subpoena 15 is required.” (ECF No. 26, at p. 2). 16 That said, the Court is concerned with what appears to be the institution’s refusal to 17 provide Plaintiff’s medical records to her for this case. The Court cannot determine if those 18 records are relevant to the case, including falling within the Court’s order, and/or whether the 19 institution had a valid objection to such production. 20 Nevertheless, to better understand Plaintiff’s difficulties in obtaining these documents 21 and potential need for further action to obtain such documents, the Court will require 22 Defendants to respond within 14 days indicating whether they have obtained Plaintiff’s medical 23 records from Plaintiff’s institution of confinement as ordered by the Court and whether they 24 have or intend to provide those records to Plaintiff. 26 As to Plaintiff's requests for pro bono counsel, Plaintiff does not have a constitutional 27 right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 28 1997), withdrawn in part on reh’g en banc, 154 F.3d 952 (9th Cir. 1998), and the Court cannot 3 1 require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United 2 States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in 3 certain exceptional circumstances the Court may request the voluntary assistance of counsel 4 pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. To determine whether to appoint 5 counsel, the “court must evaluate the likelihood of success on the merits as well as the ability of 6 the petitioner to articulate his claims pro se in light of the complexity of the legal issues 7 involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 8 Upon review of the complaint and Plaintiff’s filings, the Court finds that Plaintiff 9 appears to have a sufficient grasp of her claims and the legal issues involved and that she can 10 articulate those claims adequately. The legal issues involved are not extremely complex and it 11 is too early in the case to determine Plaintiff’s likelihood of success on the merits such that the 12 interests of justice require the appointment of counsel at the present time. Routine discovery 13 matters do not indicate the presence of complex legal issues warranting a finding of exceptional 14 circumstances in which the Court may request the voluntary assistance of counsel pursuant to 15 § 1915(e)(1). Rand, 113 F.3d at 1525 (holding that while the appellant might have fared better 16 with counsel during discovery, this is not the test). 17 Accordingly, the Court will deny Plaintiff’s request for counsel without prejudice. 19 Finally, Plaintiff appears to ask for additional time to secure witnesses or expert 20 witnesses. (ECF No. 29 at 1–2).
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10 CHANTELL GOSZTYLA, Case No. 1:22-cv-00610-NODJ-EPG (PC)
11 ORDER GRANTING IN PART Plaintiff, v. ADDITIONAL TIME TO EXCHANGE WEI GU, 14 REQUESTS FOR COUNSEL AND EXPERT WITHOUT PREJUDICE 15 Defendant.
16 ORDER FOR DEFENDANT TO RESPOND 17 WITHIN 14 DAYS
18 (ECF No. 29)
19 Chantell Gosztyla is a state prisoner proceeding pro se and in forma pauperis in this 20 civil rights action filed pursuant to 42 U.S.C. § 1983. On November 17, 2023, the Court issued 21 two orders, one setting a schedule in this case through filing of the dispositive motions (ECF 22 No. 27) (hereinafter, “Scheduling Order”), the other requiring parties to exchange certain 23 documents within sixty days (ECF No. 26) (hereinafter, “Discovery Order”). Plaintiff now 24 requests additional 60 days to respond to the Court’s orders and asks the Court for counsel and 25 experts to assist her. (ECF No. 29). 26 27 28 1 1 For the following reasons, the Court grants Plaintiff’s motion for extension in part, 2 denies requests for counsel and experts without prejudice, and orders Defendant to respond 3 within fourteen days. 5 The Plaintiff states in her motion that the Court ordered parties to exchange documents 6 within 30 days. (ECF No. 29 at 1). However, the Discovery Order requires the parties to 7 exchange documents in sixty days, not thirty. (ECF No. 26 at 2) (“Each party has sixty days 8 from the date of service of this order . . .”). With the order issued on November 17, 2023, the 9 60-day deadline to exchange documents would have been January 16, 2024. 10 However, given Plaintiff’s difficulties with access to legal resources, intervening 11 holidays and corresponding closures and limited staff availability, and potential mail delays, the 12 Court grants in part Plaintiff’s request for extension of time and will allow for additional thirty 13 days to exchange the documents, until February 15, 2024. 14 The Court notes, however, that this deadline applies only to documents that parties 15 currently “have in their possession, custody, or control.” (ECF No. 26 at 2). If Plaintiff 16 currently does not have the documents in her possession and receives them later, per the terms 17 of the Discovery Order, she has thirty days to produce them from the day she receives them. 18 The Discovery Order specifies that “If any party obtains documents and/or other evidence 19 described above later in the case from a third party, that party shall provide all other parties 20 with copies of the documents and/or evidence within thirty days.” (ECF No. 26 at 3). In other 21 words, for documents such as third-party chiropractor medical records, if Plaintiff does not 22 already have them in her possession, Plaintiff does not need to produce them by February 15, 23 2024. If she receives documents falling under the order in the future, Plaintiff will then have 24 thirty days from the day she received them to produce them to opposing counsel. 26 Plaintiff’s motion and exhibits detail difficulties obtaining her own medical records 27 from California Department of Corrections and Rehabilitation (CDCR) and California 28 Correctional Health Care Services. The Court ordered parties to exchange “[a]ll of Plaintiff’s 2 1 medical records related to the incident(s) and/or condition(s) at issue in the case, including 2 those held by Central California Women’s Facility and California Correctional Health Care 3 Services” and ordered defense counsel “to obtain these documents from Plaintiff’s institution(s) 4 of confinement” (ECF No. 26 at 2 & n.1), which is Central California Women’s Facility. 5 In addition, the Court ordered that if “Defendants already have Bray Chiropractic records in 6 their possession, these records must be produced along with other medical records of the 7 Plaintiff.” Id. 8 To the extent Plaintiff provides this information to explain her delay in providing the 9 documents, the Court again states that Plaintiff does not need to provide such documents to 10 opposing counsel unless and until she receives them. Moreover, the Discovery Order 11 specifically states that “Plaintiff does not have to produce information contained in her central 12 file (C-file) to the Defendant.” (ECF No. 26 at 3). Rather, the Court requested that defense 13 counsel to “obtain these documents from Plaintiff’s institution(s) of confinement. If defense 14 counsel is unable to do so, defense counsel should inform Plaintiff that a third-party subpoena 15 is required.” (ECF No. 26, at p. 2). 16 That said, the Court is concerned with what appears to be the institution’s refusal to 17 provide Plaintiff’s medical records to her for this case. The Court cannot determine if those 18 records are relevant to the case, including falling within the Court’s order, and/or whether the 19 institution had a valid objection to such production. 20 Nevertheless, to better understand Plaintiff’s difficulties in obtaining these documents 21 and potential need for further action to obtain such documents, the Court will require 22 Defendants to respond within 14 days indicating whether they have obtained Plaintiff’s medical 23 records from Plaintiff’s institution of confinement as ordered by the Court and whether they 24 have or intend to provide those records to Plaintiff. 26 As to Plaintiff's requests for pro bono counsel, Plaintiff does not have a constitutional 27 right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 28 1997), withdrawn in part on reh’g en banc, 154 F.3d 952 (9th Cir. 1998), and the Court cannot 3 1 require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United 2 States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in 3 certain exceptional circumstances the Court may request the voluntary assistance of counsel 4 pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. To determine whether to appoint 5 counsel, the “court must evaluate the likelihood of success on the merits as well as the ability of 6 the petitioner to articulate his claims pro se in light of the complexity of the legal issues 7 involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 8 Upon review of the complaint and Plaintiff’s filings, the Court finds that Plaintiff 9 appears to have a sufficient grasp of her claims and the legal issues involved and that she can 10 articulate those claims adequately. The legal issues involved are not extremely complex and it 11 is too early in the case to determine Plaintiff’s likelihood of success on the merits such that the 12 interests of justice require the appointment of counsel at the present time. Routine discovery 13 matters do not indicate the presence of complex legal issues warranting a finding of exceptional 14 circumstances in which the Court may request the voluntary assistance of counsel pursuant to 15 § 1915(e)(1). Rand, 113 F.3d at 1525 (holding that while the appellant might have fared better 16 with counsel during discovery, this is not the test). 17 Accordingly, the Court will deny Plaintiff’s request for counsel without prejudice. 19 Finally, Plaintiff appears to ask for additional time to secure witnesses or expert 20 witnesses. (ECF No. 29 at 1–2). Plaintiff is not required to secure either by the February 15, 21 2024 deadline. The Court has not set deadlines for expert discovery. The Court’s Scheduling 22 Order set a schedule through August of 2024 for non-expert discovery, with August 16, 2024 23 deadline for filing dispositive motions. (ECF No. 27 at 5). Only after those motions are decided 24 and if the case is still proceeding, “the Court will set expert disclosure deadlines, a pretrial 25 conference, pretrial deadlines, and a trial date.” (Id. at 6). 26 To the extent Plaintiff’s motion can be construed as a request for the Court to appoint 27 Plaintiff an expert for her, the Court will deny her motion without prejudice for the reasons 28 stated below. 4 1 A. Legal Standards 2 Pursuant to Fed. R. Evid. 702, “a witness who is qualified as an expert by knowledge, 3 skill, experience, training or education may testify in the form of an opinion or otherwise if: 4 (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to 5 understand the evidence or to determine a fact in issue . . .” The Court has discretion to appoint 6 a neutral expert pursuant to Rule 706(a) of the Federal Rules of Evidence. See Students of 7 California Sch. for the Blind v. Honig, 736 F.2d 538, 549 (9th Cir. 1984), vacated on other 8 grounds, 471 U.S. 148 (1985). In relevant part, Rule 706 states that “[o]n a party’s motion or 9 on its own, the court may order the parties to show cause why expert witnesses should not be 10 appointed . . .” Fed. R. Evid. 706(a); see also Walker v. American Home Shield Long Term 11 Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999). 12 Where a party has filed a motion for appointment of a neutral expert witness pursuant to 13 Rule 706, the court must provide a reasoned explanation of its ruling on the motion. See Gorton 14 v. Todd, 793 F. Supp. 2d. 1171, 1178–79 (E.D. Cal. 2011). An expert witness may be 15 appropriate if the evidence consists of complex scientific evidence. McKinney v. Anderson, 924 16 F.2d 1500, 1511 (9th Cir. 1991), vacated on other grounds sub. nom., Helling v. McKinney, 17 502 U.S. 903 (1991). However, “expert witnesses should not be appointed under Rule 706 18 where not necessary or significantly useful for the trier of fact to comprehend a material issue 19 in a case . . . [T]here also must be some evidence, admissible or otherwise, that demonstrates a 20 serious dispute that could be resolved or understood through expert testimony.” Id. at 1181. 21 The determination to appoint a neutral expert rests solely in the court’s discretion. See 22 McKinney, 924 F.2d at 1511; see also Sanders v. York, 446 F, App’x 40, 43 (9th Cir. 2011). 23 B. Analysis 24 First, to the extent that Plaintiff seeks appointment of an expert witness for her benefit, 25 the Court has no authority to grant her such relief. As stated above, Rule 706(a) of the Federal 26 Rules of Evidence permits the Court to appoint only neutral expert witnesses. Honig, 736 F.2d 27 at 549. 28 5 1 Furthermore, “28 U.S.C. § 1915, does not authorize the court to appoint an expert for 2 plaintiff’s benefit to be paid by the court.” Gorton, 793 F. Supp. 2d at 1184 n.11. Thus, if the 3 Court were able to appoint an expert witness in this action, the expert would be appointed to 4 assist the Court, and not to testify on behalf of Plaintiff or respond to defenses brought by 5 Defendant. 6 Second, to the extent that Plaintiff seeks appointment of a neutral expert witness, her 7 motion is premature. A neutral expert witness may be necessary where there is “some evidence, 8 admissible or otherwise, that demonstrates a serious dispute that could be resolved or 9 understood through expert testimony.” Gorton, 793 F. Supp. 2d at 1181. No such evidence has 10 been filed in this action. At this time, there are no pending matters on which the Court may 11 require special assistance, such as to resolve a motion for summary judgment. 12 Furthermore, at least at this stage of the proceeding, Plaintiff’s claim of deliberate 13 indifference to serious medical need does not appear so complex as to require an expert witness 14 to present or prove the case. See, e.g., Noble v. Adams, No. 1:03-CV-05407-AWI-SMS (PC), 15 2009 WL 3028242, at *1 (E.D. Cal. Sept. 16, 2009) (denying plaintiff’s request to appoint 16 medical expert witness in section 1983 action because “the issues are not so complex as to 17 require the testimony of an expert”); Lopez v. Scribner, 2008 WL 551177, at *1 (E.D. Cal. Feb. 18 27, 2008) (denying plaintiff’s request to appoint medical expert witness in § 1983 action 19 because “the legal issues involved in this action are not particularly complex.”); Hooker v. 20 Adams, 2007 WL 4239570, at *1 (E.D. Cal. Dec. 3, 2007) (plaintiff’s motion for the 21 appointment of an expert witness denied as “the legal issues involved in this action are not 22 particularly complex.”). 23 At this time, Plaintiff’s motion for the appointment of an expert witness is denied. 25 Accordingly, IT IS ORDERED that: 26 1. Plaintiff’s motion for extension of time (ECF No. 29) is granted in part. 27 The deadline for parties to exchange documents set by the Discovery Order 28 (ECF No. 26) is extended to February 15, 2024. 6 1 2. Plaintiffs request for appointment of counsel and expert (ECF No. 29) is 2 DENIED without prejudice. 3 3. Defendant is ordered to respond to this Order within 14 days. 4 5 || IT IS SO ORDERED. ° || Dated: _ December 15, 2023 [JEP hoy — 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28