Robledo 250767 v. Bautista

• Court: District Court, D. Arizona
• Decided: February 24, 2022
• 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 is Plaintiff’s appeal (Doc. 128) from Magistrate Judge Fine’s 16 November 1, 2021, Order, which denied Plaintiff’s Motion to Appoint an Independent 17 Expert Witness (Doc. 127). The Court now rules. 18 I. BACKGROUND 19 After his previous complaints were dismissed, Plaintiff Paul Anthony Robledo 20 (“Plaintiff”) filed his Third Amended Complaint on April 23, 2020. (Doc. 13). The Court 21 dismissed count one of the Third Amended Complaint and ordered Defendants Bautista 22 and Trinity Services Group to answer counts two and three of the Complaint. (Doc. 14). 23 Count II is a freedom of speech claim, alleging that Defendant Bautista “completely 24 stifled” Plaintiff in his appeal of confiscated mail. (Id. at 3–4). Count III is a claim 25 regarding a denial of “basic necessities,” alleging that Plaintiff is provided a diet 26 insufficient under FDA recommendations. (Id. at 4). The Court referred the matter to 27 Magistrate Judge Fine. (Id.) 28 On August 24, 2021, Plaintiff submitted a Motion to Appoint an Independent Expert 1 Witness in Count II (“Motion”). (Doc. 115). Magistrate Judge Fine denied the motion 2 without prejudice because Plaintiff’s motion was “too general to meet the requirements of 3 appointment of an expert pursuant to Federal Rule of Evidence 706.” (Doc. 127 at 3). 4 Further, Magistrate Judge Fine stated that, “[s]hould the Court later find that appointment 5 of an expert witness be necessary to aid the trier of fact in resolving a complex issue, the 6 Court may sua sponte appoint an independent expert at such a later date.” (Id. at 5). Plaintiff 7 appealed that decision to this Court. (Doc. 128). 8 II. LEGAL STANDARD 9 This Court may modify or set aside any part of a pretrial order issued by a magistrate 10 judge that is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. 11 P. 72(a). The Court will overturn a magistrate judge’s decision only if it is the result of 12 “clear error.” Maisonville v. F2 Am., Inc., 902 F.2d 746, 747 (9th Cir. 1990) (citations 13 omitted). Under this standard of review, the Court “may not simply substitute its judgment 14 for that of the deciding court.” Grimes v. City & County of San Francisco, 951 F.2d 236, 15 241 (9th Cir. 1991) (citations omitted). Instead, the Court must have a “definite and firm 16 conviction that a mistake has been committed.” Easley v. Cromartie, 532 U.S. 234, 242 17 (2001) (citation omitted). The burden of making this showing is on the objecting party. See 18 Kinkeade v. Beard, No. 2:15-CV-01375-TLN-CDK, 2017 U.S. Dist. LEXIS 101501, at *2 19 (E.D. Cal. June 29, 2017). 20 III. ANALYSIS 21 Plaintiff requests the Court vacate Magistrate Judge Fine’s Order denying Plaintiff’s 22 Motion to Appoint an Independent Expert Witness in Count II (Doc. 115) and appoint an 23 independent expert witness. (Doc. 128 at 4). Plaintiff asserts that the Court should appoint 24 an independent expert under Federal Rule of Evidence 706 because expert testimony is 25 important “in cases involving an inmate’s First Amendment rights like in Count II of this 26 case.” (Doc. 115 at 1). 27 Under Federal Rule of Evidence 706, a district court has the discretion to appoint 28 an independent expert witness. Fed. R. Civ. P. 706(a) (“The court may appoint any expert 1 that the parties agree on and any of its own choosing”) (emphasis added); see also Walker 2 v. Am. Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999). 3 Factors a court should examine when considering the appointment of an independent expert 4 include “the complexity of the matters to be determined and the fact-finder’s need for a 5 neutral, expert view.” Carranza v. Fraas, 763 F. Supp. 2d 113, 119 (D.D.C. 2011); see 6 Berg v. Prison Health Servs., 376 F. App’x 723, 724 (9th Cir. 2010) (holding a district 7 court did not err in denying a motion to appoint an independent expert because the matter 8 did not involve technical evidence or complex issues); Skylstad v. Reynolds, 248 F. App’x 9 808, 810 (9th Cir. 2007) (same). Appointment of an independent expert under Rule 706 10 “should be reserved for exceptional cases in which the ordinary adversary process does not 11 suffice.” McCoy v. Stronach, 494 F. Supp. 3d 736, 740 (E.D. Cal. 2020) (internal quotation 12 marks and citation removed). 13 The Court agrees with Magistrate Judge Fine’s determination that there is currently 14 no basis for appointment of an independent expert under Rule 706. Count II of Plaintiff’s 15 Third Amended Complaint asserts a freedom of speech claim, alleging that Defendant 16 improperly confiscated his incoming mail and subsequently stifled his appeal request in 17 violation of the First Amendment. (Doc. 13 at 5–6). Magistrate Judge Fine stated—and the 18 Court agrees—that the issues for this Count “do not appear complex, and it appears that 19 the ordinary adversary process in litigating Count Two will suffice.” (Doc. 127 at 5). This 20 decision is in line with decisions made by other courts. See Antonetti v. Skolnik, No. 3:10- 21 cv-158-LRH-WGC, 2013 U.S. Dist. LEXIS 20124, at *17–18 (D. Nev. Feb. 13, 2013) 22 (finding Plaintiff’s First Amendment mail claim “neither so complex nor unduly 23 complicated that the trier of fact would need assistance from an expert”). As Plaintiff has 24 not produced any evidence to indicate that his First Amendment mail claim is uniquely 25 complex, Magistrate Judge Fine did not err in finding the ordinary adversary process would 26 suffice. See Womack v. GEO Group, Inc., No. CV-12-1524-PHX-SRB (LOA), 2013 U.S. 27 Dist. LEXIS 77537, at *6 (D. Ariz. June 3, 2013) (denying appointment of an expert 28 witness when “Plaintiff ha[d] made no showing that the evidence or his claims are so 1 complex that the appointment of a court expert is necessary”). Because the Court concludes 2 that the issue is not sufficiently complex to warrant an expert witness, the Court denies 3 Plaintiff’s motion. 4 In addition, Plaintiff fails to specify the nature of expert witness requested or what 5 topics the expert would discuss. (See Doc. 127 at 3). Because of these deficiencies, the 6 Court believes that Plaintiff is seeking the appointment of expert testimony to further 7 develop his claim. However, courts do not appoint independent expert witnesses to assist 8 a litigating party in the collection of evidence. Carranza, 763 F. Supp. 2d at 119; see also 9 Gorrell v. Sneath, No. 1:12-cv-0554-JLT, 2013 U.S. Dist. LEXIS 93960, at *6 (E.D. Cal. 10 Jul. 3, 2013) (“[T]he Court is not authorized to appoint an expert to advocate on Plaintiff’s 11 behalf.”); Bontemps v. Lee, No. 2:12-cv-0771 KJN P, 2013 U.S. Dist. LEXIS 13863, at *9 12 (E.D. Cal. Jan. 31, 2013) (“The principal purpose of a court-appointed expert pursuant to 13 Rule 706, is to assist the trier of fact, not to serve as an advocate for a party.”). Therefore, 14 the mere fact that Plaintiff has struggled to secure an expert witness of his own, (see Doc. 15 115 at 2; Doc. 128 at 3), is not a sufficient reason to persuade the Court to appoint one. 16 McCoy v. Stronach, 494 F. Supp. 3d 736, 740 (E.D. Cal. 2020). 17 Plaintiff asserts that Magistrate Judge Fine erred in stating that the Court does not 18 have the authority to appoint unwilling experts, arguing that the Court has both the power 19 and the “relationships” to do so. (Doc. 128 at 2). But this is not so. First, under Rule 706, 20 courts “may only appoint someone who consents to act.” Fed. R. Evid. 706(a). Thus, 21 contrary to Plaintiff’s assertions, (Doc. 128 at 2–3), Magistrate Judge Fine correctly stated 22 that “the Court lacks authority to appoint an expert who does not want to do work for this 23 case.” (Doc. 127 at 3). Second, the Court does not have the “relationships” to appoint an 24 independent expert. See Martinez v. Allison, No. 1:11-cv-001749-RRB, 2016 U.S. Dist. 25 LEXIS 10385, at *4 (E.D. Cal. Jan. 28, 2016) (“The Court does not maintain a roster of 26 qualified ‘experts’ to call”). Accordingly, Magistrate Judge Fine did not err on either of 27 these grounds. 28 Finally, Plaintiff argues that Magistrate Judge Fine erred when she found Plaintiff’s 1 case citations inapplicable to his Motion. (Doc. 128 at 2, 3–4). Plaintiff relies principally 2 on two cases to support his Motion: Steele v. Shah, 87 F.3d 1266 (11th Cir. 1996), and 3 Beard v. Banks, 548 U.S. 521 (2006). According to Plaintiff, Steele “stated the appointment 4 of an expert for the indigent Plaintiff may ‘avoid a wholly one-sided presentation of 5 opinions on the issue,’” and Beard “confirmed the importance of expert testimony in cases 6 involving an inmate’s First Amendment rights.” (Doc. 115 at 1). 7 The Court first addresses Plaintiff’s reliance on Steele. In Steele, the Eleventh 8 Circuit reversed a district court’s denial of a motion to appoint an expert witness because 9 no explanation was given for the denial. Steele, 87 F.3d at 1271. Thus, Steele holds only 10 that courts must provide a reason for denying a motion to appoint an expert witness; it does 11 not discuss the circumstances under which a court must appoint one. In fact, the Eleventh 12 Circuit expressly stated, “[w]e emphasize that we do not here offer any opinion on the 13 propriety of appointing an expert witness.” Id. Because Steele does not address the 14 propriety of appointing an expert witness, it does not bear on Plaintiff’s Motion here. 15 Likewise, Plaintiff’s reliance on Beard is unavailing. In Beard, the Supreme Court 16 held that a prison’s ban on all newspapers, magazines, and personal photographs for 17 inmates did not violate the First Amendment because the prison officials provided 18 “adequate legal support for the policy.” Beard, 548 U.S. at 525. Notably, the Supreme 19 Court in Beard did not discuss Rule 706(a). By contrast, Plaintiff here seeks under Rule 20 706(a) to obtain a court-appointed expert witness, (Doc. 115), regarding his claim that one 21 officer has obstructed his access to the appeals process for mail confiscation. (Doc. 14 at 22 3–4). Thus, it is unclear how Beard applies here when it has an unrelated holding based 23 upon facts and claims not analogous to Plaintiff’s case. 24 Upon further examination of both Steele and Beard, the Court does not believe that 25 either case bears on the propriety of denying a motion to appoint an expert witness in 26 Plaintiff’s case. See Womack, 2013 U.S. Dist. LEXIS 77537, at *8 (considering and 27 rejecting Steele and Beard’s application in a request for an expert witness). Therefore, the 28 Court agrees with Magistrate Judge Fine’s conclusions that neither Beard nor Steele 1 || provide authority to support Plaintiff's request to appoint an independent expert witness here. 3 Accordingly, the Court finds that Magistrate Judge Fine’s Order denying the motion was neither clearly erroneous nor contrary to law, and the Court will Deny Plaintiff's 5 || Appeal and affirm Magistrate Judge Fine’s Order. IV. CONCLUSION 7 Based on the foregoing, 8 IT IS ORDERED that Plaintiff's appeal from Magistrate Judge Fine’s Order (Doc. 9|| 128) is DENIED and Magistrate Judge Fine’s Order (Doc. 127) is AFFIRMED. 10 Dated this 24th day of February, 2022. 11 12 A 13 James A. Teilborg 14 Senior United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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