Robledo 250767 v. Bautista

• Court: District Court, D. Arizona
• Decided: August 4, 2021
• Docket: 2:19-cv-05349
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Paul Anthony Robledo, No. CV-19-05349-PHX-JAT (DMF)

10 Plaintiff, ORDER

11 v.

12 Unknown Bautista, et al.,

13 Defendants. 14 15 Before the Court are Plaintiff’s three appeals (Docs. 101, 102, 103) from Magistrate 16 Judge Fine’s Orders issued on July 2, 2021 (Docs. 98, 99, 100). The Court now rules. 17 I. BACKGROUND 18 Plaintiff filed his initial Complaint on October 9, 2019 (Doc. 1). After the Court 19 dismissed Plaintiff’s initial Complaint, (Doc. 6), Plaintiff filed an Amended Complaint 20 (Doc. 10) and a Second Amended Complaint (Doc. 11). After the Court dismissed the 21 Second Amended Complaint, (Doc. 12), Plaintiff filed a Third Amended Complaint (Doc. 22 13). The Court dismissed count one of the Third Amended Complaint and ordered 23 Defendants Bautista and Trinity Services Group to answer counts two and three of the 24 complaint, and the Court referred the matter to Magistrate Judge Fine. (Doc. 14). 25 Defendants answered the Third Amended Complaint. (Docs. 27, 45). Magistrate Judge 26 Fine issued a Scheduling and Discovery Order (Doc. 29) and later amended that Order 27 (Doc. 62). 28 On March 23, 2021 Plaintiff submitted a Motion to Compel Production (Doc. 64). 1 Magistrate Judge Fine denied the motion and ordered Defendant Bautista to notify the 2 Court and Plaintiff in writing if he “received any ADOCCRR letters of reprimand since 3 March 2019.” (Doc. 75 at 7). On May 14, 2021, Defendant Bautista submitted a Notice 4 stating that “[n]o such ‘letters of reprimand’ were found.” (Doc. 79 at 1). Plaintiff then 5 filed a Motion for Extension of Time to Respond and Miscellaneous Relief (Doc. 85) and 6 an Amended Motion for Extension of Time to Respond and Miscellaneous Relief (Doc. 7 86). In the amended motion, Plaintiff alleged he had not received Defendant Bautista’s 8 May 14 Notice and requested additional time to respond to the Notice, that Defendant 9 Bautista send him another copy of the Notice, that Defendants be required to register at 10 “Securus.net” and send Plaintiff “an ‘introductory’ email,” that Defendants be required to 11 send Plaintiff an email after every filing, that the Clerk of Court be required to register at 12 “Securus.net” and send Plaintiff “an ‘introductory’ email,” and that Magistrate Judge Fine 13 recommend a directive be issued to register at “Securus.net” and send “an ‘introductory’ 14 email” in all § 1983 cases filed by inmates. (Doc. 86 at 2–3). Magistrate Judge Fine denied 15 Plaintiff’s amended motion, (Doc. 98), and Plaintiff appealed that decision to this Court, 16 (Doc. 101). 17 On May 4, 2021 Plaintiff submitted a Motion to Appoint Expert Witness (Doc. 78) 18 seeking the appointment of an independent expert to test the amount of vitamin B12 in his 19 food. Magistrate Judge Fine denied the motion without prejudice because Plaintiff had not 20 “demonstrated that the issues in this case are so complex that an independent expert is 21 necessary to assist the trier of fact.” (Doc. 99 at 5). Further, Magistrate Judge Fine stated 22 that, “[s]hould the Court later find that appointment of an expert witness be necessary to 23 aid the trier of fact in resolving a complex issue, the Court may sua sponte appoint an 24 independent expert at such a later date.” (Id.). Plaintiff appealed that decision to this Court. 25 (Doc. 102). 26 On May 4, 2021 Plaintiff submitted a Motion to Compel Production of Documents 27 (Doc. 77) seeking an unredacted copy of contract #120094DC and related documents. 28 Magistrate Judge Fine denied the motion, but ordered that, within 21 days of the Order, 1 Defendant Trinity Services Group “mail to Plaintiff a copy of contract #120094DC and 2 related amendments that redacts Defendant’s competitively sensitive information, 3 confidential trade secrets, and which excludes any materials subject to privilege.” (Doc. 4 100 at 6). Plaintiff appealed that decision to this Court. (Doc. 103). 5 II. LEGAL STANDARD 6 This Court may modify or set aside any part of a pretrial order issued by a magistrate 7 judge that “is clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. 8 P. 72(a). The Court will overturn a magistrate judge’s decision only if it is the result of 9 “clear error.” Maisonville v. F2 Am., Inc., 902 F.2d 746, 747 (9th Cir. 1990) (citations 10 omitted). Under this standard of review, the Court “may not simply substitute its judgment 11 for that of the deciding court.” Grimes v. City & County of San Francisco, 951 F.2d 236, 12 241 (9th Cir. 1991) (citations omitted). Instead, the Court must have a “definite and firm 13 conviction that a mistake has been committed.” Easley v. Cromartie, 532 U.S. 234, 242 14 (2001) (citation omitted). The burden of making this showing is on the objecting party. See 15 Kinkeade v. Beard, No. 215CV01375TLNCDK, 2017 WL 2813037, at *2 (E.D. Cal. June 16 29, 2017). 17 III. ANALYSIS 18 Plaintiff has appealed three orders issued by Magistrate Judge Fine. (Docs. 101, 102, 19 103). As each appeal addresses a different order, the Court will examine each appeal in 20 turn. 21 a. First Appeal 22 In his first appeal, Plaintiff requests the Court vacate Magistrate Judge Fine’s Order 23 regarding Plaintiff’s Amended Motion for Extension of Time to Respond and 24 Miscellaneous Relief (Doc. 98), direct Defendants to register at “SecurusTech.net” and 25 send Plaintiff “an ‘introductory’ email,” and direct the Clerk of Court to register at 26 “SecurusTech.net” and send Plaintiff “an ‘introductory’ email.” (Doc. 101 at 2–3). Plaintiff 27 further withdraws his request to have Defendants sent him an email every time they file a 28 document. (Doc. 101 at 1). 1 To begin, Plaintiff argues that Magistrate Judge Fine’s Order denying his motion 2 incorrectly labeled Plaintiff’s motion as a request to change the rules of service in this 3 matter. (Id.). Instead, Plaintiff characterizes his motion as “a simple request to use emails 4 by the Plaintiff to the Defendant’s (sic).” (Id.). Plaintiff, however, admits that there is no 5 “case law or procedural rule” to support his request. (Doc. 95 at 1–2). While Plaintiff’s 6 request may not be to change the rules of service, it is a request to change the rules 7 regarding communication with inmate plaintiffs. The Court already has procedures in place 8 for communication with inmate plaintiffs in this and other cases, and the Court will not 9 change the rules for this matter. As Magistrate Judge Fine stated in her Order: “If Plaintiff 10 wishes to propose a general rule change, there are proper avenues to do so regarding the 11 Federal Rules of Civil Procedure and regarding this Court’s local rules. Plaintiff may 12 exercise his right to propose rule changes, but such proposals are not properly made as 13 court filings in this case.” (Doc. 98 at 4). 14 Because Plaintiff’s motion amounts to a request to change the Rules of Civil 15 Procedure or this Court’s local rules, Magistrate Judge Fine’s Order denying the motion 16 was neither clearly erroneous nor contrary to law. Accordingly, the Court will deny 17 Plaintiff’s first appeal and affirm Magistrate Judge Fine’s Order. 18 b. Second Appeal 19 In his second appeal, Plaintiff requests the Court vacate Magistrate Judge Fine’s 20 Order regarding Plaintiff’s Motion to Appoint Expert Witness (Doc. 99) and appoint an 21 independent expert witness. (Doc. 102 at 2). Plaintiff asserts that an independent expert 22 witness should be appointed by the Court under Federal Rule of Evidence 706 to test the 23 vitamin levels of the food Plaintiff is served in Prison because “calculating the amount of 24 vitamin B12 in a food item is a ‘complex scientific subject.’” (Id. at 1). 25 Under Federal Rule of Evidence 706, a district court has the discretion to appoint 26 an independent expert witness. Walker v. Am. Home Shield Long Term Disability Plan, 27 180 F.3d 1065, 1071 (9th Cir. 1999). Factors a court should examine when considering the 28 appointment of an independent expert include “the complexity of the matters to be 1 determined and the fact-finder’s need for a neutral, expert view.” Carranza v. Fraas, 763 2 F. Supp. 2d 113, 119 (D.D.C. 2011); see Berg v. Prison Health Servs., 376 F. App’x 723, 3 724 (9th Cir. 2010) (holding a district court did not err in denying a motion to appoint an 4 independent expert because the matter did not involve technical evidence or complex 5 issues); Skylstad v. Reynolds, 248 F. App’x 808, 810 (9th Cir. 2007) (same). Appointment 6 of an independent expert under Rule 706 “should be reserved for exceptional cases in 7 which the ordinary adversary process does not suffice.” McCoy v. Stronach, 494 F. Supp. 8 3d 736, 740 (E.D. Cal. 2020) (internal quotation marks and citation removed). 9 The Court agrees with Magistrate Judge Fine’s determination that there is presently 10 no basis for appointment of an independent expert under Rule 706. While Plaintiff argues 11 that “[c]alculating the amount of vitamin B12 in a food item is a ‘complex scientific 12 subject’ because that calculation [is] performed in a lab by using chemicals,” he 13 misunderstands the role of an independent expert. (Doc. 102 at 1). Courts do not appoint 14 independent expert witnesses to assist a litigating party in the collection of evidence. See 15 Carranza, 763 F. Supp. 2d at 119 (“Courts do not, however, appoint expert witnesses for 16 the purpose of assisting a litigating party.”); Hannah v. United States, 2006 WL 2583190, 17 at *4 (N.D. Tex. Sept. 1, 2006) (declining to appoint an expert witness for a pro se plaintiff 18 because such appointment would merely assist the plaintiff in proving his case rather than 19 provide a neutral expert view for the court); Daker & Kennedy v. Wetherington, 2006 WL 20 648765, at *5 (N.D. Ga. Mar. 15, 2006) (noting that “[l]itigant assistance is not the purpose 21 of Rule 706”). Thus, Plaintiff’s request for the Court to appoint an independent expert 22 under Rule 706 to test the levels of B12 in his food and present that evidence at trial is 23 improper. (Doc. 78 at 1–2); see O’brien v. Said, No. 118CV00741NONESABPC, 2020 24 WL 5203424, at *1 (E.D. Cal. Sept. 1, 2020) (holding that a court may not appoint an 25 expert witness to present evidence for Plaintiff at trial). Further, Plaintiff notes that he is 26 eligible for Cares Act refund payments, so he may retain his own expert without a court 27 order. (See Doc. 84 at 2). 28 At best, Plaintiff’s request is premature because he has made no argument and 1 pointed to no evidence of “a serious dispute that could be resolved or understood through 2 expert testimony.” McCoy, 494 F. Supp. 3d at 740. While testing the B12 levels of food is 3 a scientific process, determining if those levels meet the necessary levels to prevent a B12 4 deficiency is not a complex scientific process. Thus, Magistrate Judge Fine’s Order 5 denying the motion was neither clearly erroneous nor contrary to law. Accordingly, the 6 Court will deny Plaintiff’s second appeal and affirm Magistrate Judge Fine’s Order. 7 c. Third Appeal 8 In his third appeal, Plaintiff requests the Court vacate Magistrate Judge Fine’s Order 9 denying Plaintiff’s Motion to Compel Production of Documents (Doc. 100) and order 10 Defendant Trinity Services Group to produce a wholly unredacted version of contract 11 #120094DC. (Doc. 103). Plaintiff argues that production of the full unredacted contract 12 and related amendments should be ordered because the contract is public information 13 because a party to the contract is a state agency, Defendant Trinity Services Group waived 14 any privilege over the document by producing it in a separate case, and Defendant Trinity 15 Services Group could improperly redact necessary information from the contract. (Doc. 16 103 at 1–3). 17 Notably, Plaintiff has not offered any evidence or law to support his arguments for 18 receiving a full, unredacted copy of the contract at issue. (See id.). Consequently, 19 Magistrate Judge Fine found that the contract was not public information simply because 20 one of the parties involved is a state agency and that it is appropriate to allow Defendant 21 Trinity Services Group to redact its sensitive, confidential, and privileged information. 22 (Doc. 100 at 4–5). Magistrate Judge Fine additionally determined that, even if an 23 unredacted contract had been produced in another case, Plaintiff’s argument that such 24 production subjects the contract to automatic production without redaction in all future 25 cases is erroneous. (Id. at 5). Finally, Magistrate Judge Fine found that Plaintiff’s 26 arguments regarding improper redactions are premature and unsupported. (Id.). 27 The Court agrees with Magistrate Judge Fine regarding each of Plaintiff’s 28 arguments. Plaintiff provides, and the Court is aware of, no legal support for the arguments that contracts with state agencies are public information or that the production of an unredacted document in a single case subjects the document to automatic unredacted 3 || production in all future litigation. Further, there is no evidence or reason to believe that 4|| Defendant Trinity Services Group will improperly redact necessary information from the contract at issue, and, if it does make improper redactions, Plaintiff can then raise his 6 || argument that portions of the contract have been improperly redacted. 7 Accordingly, the Court finds that Magistrate Judge Fine’s Order denying the motion 8 || was neither clearly erroneous nor contrary to law, and the Court will deny Plaintiff's third 9|| appeal and affirm Magistrate Judge Fine’s Order. 10] IV. CONCLUSION 11 Based on the foregoing, 12 IT IS ORDERED that Plaintiff’s appeals from Magistrate Judge Fine’s Orders 13 || (Docs. 101, 102, 103) are DENIED and Magistrate Judge Fine’s Orders (Docs. 98, 99, 100) are AFFIRMED. 15 Dated this 4th day of August, 2021. 16 17 A 18 James A. Teilborg 19 Senior United States District Judge 20 21 22 23 24 25 26 27 28

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