Silva v. Sanders

Opinion

1 2 3 4

5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 CASE NO. 2:21-CV-472-RAJ-DWC 11 Plaintiff, ORDER DENYING MOTION TO 12 v. COMPEL AND MOTION FOR EXPERT

14 Defendant.

15 Plaintiff Ramon Saul Silva, Jr., proceeding pro se and in forma pauperis, initiated this 16 civil rights Complaint pursuant to 42 U.S.C. § 1983. See Dkt. 1, 5. Currently before the Court are 17 Plaintiff’s Motion for an Order to Compel and Motion for Court Appointed Expert. Dkt. 16, 21. 18 After consideration of the record, the Motions (Dkt. 16, 21) are denied.1 19 I. Motion to Compel (Dkt. 16) 20 On September 11, 2021, Plaintiff filed the Motion to Compel, wherein Plaintiff requests a 21 Court order directing Defendant Benjamin Sanders to respond to discovery requests. Dkt. 16. A 22

23 1 Plaintiff filed a Motion to Compel Disclosure on November 6, 2021. Dkt. 24. This Motion is not ready for 24 the Court’s consideration until November 26, 2021. 1 party may obtain discovery regarding any nonprivileged information that is relevant to any claim 2 or defense in his or her case. Fed. R. Civ. P. 26(b)(1). Once the party seeking discovery has 3 established the request meets this relevancy requirement, “the party opposing discovery has the 4 burden of showing that the discovery should be prohibited, and the burden of clarifying, explaining

5 or supporting its objections.” Bryant v. Ochoa, 2009 WL 1390794, at *1 (S.D. Cal. May 14, 2009). 6 When a party believes the responses to his discovery requests are incomplete, or contain 7 unfounded objections, he may move the court for an order compelling disclosure. Fed. R. Civ. P. 8 37. 9 Pursuant to Federal Rule of Civil Procedure 37(a)(1): 10 . . . The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure 11 or discovery in an effort to obtain it without court action.

12 See also LCR 37(a)(1). “A good faith effort to confer with a party or person not making a 13 disclosure or discovery requires a face-to-face meeting or a telephone conference.” LCR 14 37(a)(1). If the movant fails to include such a certification, the court may deny the motion 15 without addressing the merits of the dispute. Id. 16 In the Motion to Compel, Plaintiff states he attempted to meet and confer with 17 Defendant’s counsel by phone and email. Dkt. 16 at 2. Defendant’s counsel filed a response 18 stating she did not receive any email from Plaintiff and was not aware he attempted to call her. 19 Dkt. 19; see also Dkt. 20. The evidence also shows Defendant’s counsel informed Plaintiff that 20 Defendant would respond to the discovery requests by September 15, 2021. Dkt. 19, 20. 21 While Plaintiff states he attempted to meet and confer with Defendant’s counsel, the 22 record fails to show the parties sufficiently met the meet and confer requirements in an effort to 23 resolve the discovery dispute without Court action. Further, at this time, it appears Defendant 24 1 may have responded to Plaintiff’s discovery requests. See Dkt. 20 (discovery responses were 2 going to be completed on September 15, 2021). Therefore, Plaintiff’s Motion to Compel (Dkt. 3 16) is denied without prejudice. 4 II. Motion for Expert (Dkt. 21)

5 Plaintiff filed a Motion for Court Appointed Expert on September 23, 2021, requesting 6 the Court appoint an expert to assist in the fact finding regarding Plaintiff’s medical disorders 7 and treatment. Dkt. 21. 8 Federal Rule of Evidence 706 allows the court to appoint a neutral expert. Students of 9 Cal. Sch. For the Blind v. Honig, 736 F.2d 538, 549 (9th Cir. 1984), vacated on other grounds, 10 471 U.S. 148 (1985). The determination to appoint an expert rests solely in the court’s discretion 11 and the complexity of the matters to be determined and the need for neutral expert review. See 12 Leford v. Sullivan, 105 F.3d 354, 358-59 (9th Cir. 1997). “Appointment [of expert witnesses] 13 may be appropriate when ‘scientific, technical, or other specialized knowledge will assist the 14 trier of fact to understand the evidence or decide a fact in issue....’ ” Levi v. Director of

15 Corrections, 2006 WL 845733 (E.D. Cal. March 31, 2006) (citing Ledford v. Sullivan, 105 F.3d 16 354, 358–59 (7th Cir. 1997). However, “[r]easonably construed, [Rule 706] does not 17 contemplate the appointment of, and compensation for, an expert to aid one of the parties.” 18 Walker v. Woodford, 2008 WL 793413 (S.D. Cal., March 24, 2008) (citation omitted). 19 The issue in this case is whether Defendant acted with deliberate indifference to 20 Plaintiff’s serious medical needs in his treatment of Plaintiff’s complaints of eye pain and 21 headaches while Plaintiff was housed at the King County Jail in 2019. Dkt. 5. While Plaintiff 22 states a medical expect should be appointed to assist the Court, it appears Plaintiff requests the 23 appointment of an expert for his benefit alone. See Dkt. 21. Essentially, Plaintiff is requesting the

24 1 Court appoint an expert to serve as his advocate and to create a triable issue of fact, i.e. show that 2 Plaintiff suffers from a serious medical need and treatment of that need is medically necessary. 3 See id. This, however, is not the function of a neutral expert witness. See Spinks v. Lopez, 2014 4 WL 411283, at *2 (E.D. Cal. Feb. 3, 2014), subsequently aff'd, 623 F. App’x 499 (9th Cir. 2015)

5 (“The appointment of an expert witness under Rule 706 is intended to benefit the trier of fact, not 6 a particular litigant[.]”). Bontemps v. Lee, 2013 WL 417790, at *3–4 (E.D. Cal. Jan.31, 2013); 7 Gamez v. Gonzalez, 2010 WL 2228427, at *1 (E.D.Cal. Jun. 3, 2010). 8 To the extent Plaintiff’s request can be construed as a request for a neutral expert, the 9 facts of this case are not extraordinary and the legal issues are not complex. See Sloan v. 10 Oakland Police Dep’t, 376 F. App’x 738, 740 (9th Cir. 2010); Honeycutt v. Snider, 2011 WL 11 6301429, at *1 (D. Nev. Dec. 16, 2011) (“The appointment of experts in deliberate indifference 12 cases is rare, and such requests should be granted sparingly, particularly given the large volume 13 of cases in which indigent prisoners allege claims under the Eighth Amendment related to 14 medical care, and the substantial expense defendants may have to bear if courts were to appoint

15 experts in such cases.”). At this stage of litigation, the Court does not need a neutral expert to 16 determine any issues in this case. Accordingly, Plaintiff’s Motion for Court Appointed Expert 17 (Dkt. 21) is denied. 18 III. Conclusion 19 For the above stated reasons, Plaintiff’s Motion to Compel (Dkt. 16) and Motion for 20 Court Appointed Expert (Dkt. 21) are denied. 21 Dated this 22nd day of November, 2021. 22 A 23 David W. Christel United States Magistrate Judge 24