Stephen Houk v. Bryan D. Phillips, et al.

• Court: District Court, E.D. California
• Decided: November 25, 2025
• Docket: 1:23-cv-01540
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEPHEN HOUK, Case No.: 1:23-cv-01540-JLT-SKO 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL AND / OR 13 v. APPOINT AN EXPERT

14 BRYAN D. PHILLIPS, et al., (Doc. 36)

15 Defendants.

16 17 Plaintiff Stephen Houk is appearing pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. section 1983. (See Docs. 1, 4.) 19 I. INTRODUCTION 20 Plaintiff filed his original complaint on October 31, 2023. (Doc. 1.) The Court issued its 21 First Informational Order in Prisoner/Civil Detainee Civil Rights Case that same day. (Doc. 3.) On 22 February 13, 2024, the Court issued its First Screening Order, (Doc. 6), and after Plaintiff amended 23 his complaint, (Doc. 7), the Court issued a Second Screening Order, (Doc. 8), on which Plaintiff 24 elected to stand, (Doc. 9). 25 The undersigned then issued Findings and Recommendations, recommending dismissal of 26 all but Plaintiff’s Eighth Amendment claim for failure to protect against Defendant S. Alvarado- 27 Torres (“Defendant”). (Doc. 11.) As to that claim, because the undersigned had found that Plaintiff had plausibly alleged that Defendant “failed to protect Plaintiff by “forc[ing] him to perform a work 1 assignment in an area infected with black mold that worsened his chronic medical conditions,” 2 (Doc. 8 at 6; see also Doc. 7 at 6–9), the undersigned recommended Plaintiff be allowed to proceed 3 on that claim (Doc. 11 at 2). On December 13, 2024, the District Court adopted the Findings and 4 Recommendations. (Doc. 12.) On March 24, 2025, Defendant filed an answer. (Doc. 18.) 5 On August 1, 2025, Plaintiff filed a “Motion for Court to Request Counsel to Represent 6 Plaintiff or, in the Alternative, Appoint a Neutral Expert Witness.” (Doc. 36.) Defendant S. 7 Alvarado-Torres, the single remaining defendant, did not respond to the motion. (See generally 8 Docket.) 9 II. DISCUSSION 10 A. Legal Standards Concerning the Appointment of Counsel 11 Plaintiffs do not have a constitutional right to appointed counsel in section 1983 actions. 12 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 13 952, 954 n.1 (9th Cir. 1998). Nor can the Court require an attorney to represent a party under 28 14 U.S.C. § 1915(e)(1). See Mallard v. U.S. Dist. Court, 490 U.S. 296, 304-05 (1989). However, in 15 “exceptional circumstances,” the Court may request the voluntary assistance of counsel pursuant 16 to section 1915(e)(1). Rand, 113 F.3d at 1525. Given that the Court has no reasonable method of 17 securing and compensating counsel, the Court will seek volunteer counsel only in extraordinary 18 cases. In determining whether “exceptional circumstances exist, a district court must evaluate both 19 the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his claims pro 20 se in light of the complexity of the legal issues involved.” Id. at 1525 (internal quotation marks & 21 citations omitted). 22 B. Legal Standards Governing Appointment of Expert Under Rule 706 23 Rule 706 of the Federal Rules of Evidence authorizes the court to appoint an independent 24 expert. Such an appointment is within the discretion of the trial judge and may be appropriate when 25 “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the 26 evidence or decide a fact in issue.” See Torbert v. Gore, No. 14cv2911 BEN (NLS), 2016 WL 27 3460262, at *2 (S.D. Cal. June 23, 2016) (citation omitted); see also Armstrong v. Brown, 768 F.3d 1 scientific, medical, or technical matters.”). Experts appointed under this rule are typically used in 2 complex litigation where the record is not clearly developed by the parties, and generally serve the 3 purpose of aiding the court in understanding the subject matter at hand. See Walker v. Am. Home 4 Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) (appointing a physician 5 expert witness where medical testimony on record was “not particularly clear”); Woodroffe v. 6 Oregon, 2014 WL 1383400, at *5 (D. Or. April 8, 2014) (“This Rule permits a court to appoint a 7 neutral expert to assist the court to understand complex, technical, or esoteric subject matter.”); In 8 re Joint E. & S. Districts Asbestos Litig., 830 F. Supp. 686, 693 (E.D. N.Y. 1993) (noting that court 9 appointment of experts is appropriate only in “rare circumstances” and should be reserved for 10 “exceptional cases” in which the ordinary adversarial process does not suffice, such as complex 11 mass tort problems.) 12 An expert appointed pursuant to Rule 706 does not serve as an advocate for either party, 13 and each party retains the ability to call its own experts. Fed. R. Evid. 706(e); Faletogo v. Moya, 14 12cv631 GPC (WMc), 2013 WL 524037, at *2 (S.D. Cal. Feb. 12, 2013) (Rule 706 “does not 15 contemplate court appointment and compensation of an expert witness as an advocate for one of 16 the parties.”). And where a party seeks to call its own expert, even pro se litigants ordinarily “must 17 bear the costs [associated with] expert expenses.” Stakey, 2011 WL 887563, at *3 n.1. 18 Courts have been clear that Rule 706 does not allow a judge to “appoint an expert on behalf 19 of an indigent civil party.” Woodroffe, 2014 WL 1383400, at *5; see also Gorton v. Todd, 793 F. 20 Supp. 2d 1171, 1178 n.6 (E.D. Cal. 2011) (Rule 706 did not permit the appointment of a neutral 21 expert witness solely for an indigent prisoners’ “own benefit” in aiming to prove deliberate 22 indifference.) Indeed “[t]he in forma pauperis statute, 28 U.S.C. § 1915, does not authorize federal 23 courts to appoint or authorize payment for expert witnesses for prisoners or other indigent litigants.” 24 Stakey v. Stander, No. 1:09–CV–00094–BLW, 2011 WL 887563, at *3 n.1 (D. Idaho Mar. 10, 25 2011); see also Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993) (“The magistrate judge correctly 26 ruled that 28 U.S.C. § 1915, the in forma pauperis statute, does not waive payment of fees or 27 expenses for witnesses.”). 1 C. Analysis 2 1. The Court Will Deny Plaintiff’s Motion to Appoint Counsel 3 The Court must first evaluate the likelihood of Plaintiff’s success on the merits of his claims. 4 Rand, 113 F.3d at 1525. While Plaintiff’s complaint has been screened and Defendant has answered 5 the operative complaint, (Doc. 18), a determination of the likelihood of Plaintiff’s success on the 6 merits of his Eighth Amendment failure to protect claim against Defendant is nonetheless 7 premature. A likelihood of success on the merits determination is not the same as that required at 8 screening; at screening, the Court determines whether a plaintiff has sufficiently and plausibly 9 alleged a cause of action or claim entitling the plaintiff to relief. The merits of the allegations are 10 not tested, for the Court is to consider factual allegations to be true for purposes of screening. See 11 Porter v. Rivas, No. 1:33-cv-00105-ADA-CDB (PC), 2023 WL 4765492, at *1 (E.D. Cal. July 26, 12 2023); see also Serrano v. Rudas, No. 1:22-cv-00950-KES-CDB, 2024 WL 4190106, at *1 (E.D. 13 Cal. Sept. 13, 2024) (“A merits-based determination largely is premature as discovery is ongoing 14 in this action, particularly given Plaintiff's failure to argue he is likely to prevail on his claims”). 15 The Court must also evaluate Plaintiff’s ability to articulate his claims pro se in light of the 16 complexity of the legal issues involved. Rand, 113 F.3d at 1525. Here, the Court finds Plaintiff able 17 to articulate his claims in light of their complexity. As noted above, Plaintiff’s complaint asserts a 18 plausible Eighth Amendment failure to protect claim. Such claims are not complex. Bonin v. 19 Vasquez, 999 F.2d 425, 428–29 (9th Cir. 1993) (while Plaintiff may have limited knowledge of the 20 law, the Court does not find the issues in this case “so complex that due process violations will 21 occur absent the presence of counsel”); see also Arroy v. Jeffries, No. 23-1129, 2023 WL 3010154, 22 at *4 (C.D. Ill. Apr. 19, 2023) (denying motion for appointment of counsel and finding “Plaintiff’s 23 failure to protect claim is not complex”). 24 Plaintiff states he “has minimal education,” “nominal” literacy, “struggles with significant 25 physical and mental health issues,” and is “incompetent to litigate his claims in this complex, 26 technical, scientific and medical case.” (Doc. 36 at 10.) As to Plaintiff’s argument regarding the 27 complexity of the case, the Court is not convinced as “Plaintiff has demonstrated he is capable of 1 See id. And as to his lack of education, limited literacy, and struggles with physical and mental 2 health issues, the Court finds that similar circumstances exist for many prisoners and courts have 3 routinely held that they do not present exceptional circumstances warranting the appointment of 4 counsel. See, e.g., Faultry v. Saechao, No. 2:18-cv-1850 KJM AC P, 2020 WL 2561596, at *2 5 (E.D. Cal., May 20, 2020) (stating that “[c]ircumstances common to most prisoners, such as lack 6 of legal education and limited law library access, do not establish exceptional circumstances 7 supporting appointment of counsel”); Jones v. Kuppinger, No. 2:13-cv-0451 WBS AC P, 2015 WL 8 5522290, at *3-*4 (E.D. Cal. Sept. 17, 2015) (“[c]ircumstances common to most prisoners, such as 9 a deficient general education, lack of knowledge of the law, mental illness and disability, do not in 10 themselves establish exceptional circumstances warranting appointment of voluntary civil 11 counsel”); Montano v. Solomon, No. 2:07-CV-0800 KJN P, 2010 WL 4137476, at *7 (E.D. Cal. 12 Oct. 19, 2010) (denying indigent plaintiff's motion for appointment of counsel as failing to present 13 an exceptional circumstance where “plaintiff has adequately presented, albeit through another 14 inmate, the salient factual allegations of this case . . . as well as the matters now before the court”). 15 Moreover, Plaintiff is advised that neither indigency nor incarceration qualify as exceptional 16 circumstances warranting the appointment of counsel. See Suarez v. Clark, No. 1:22-cv-00160- 17 JLT-SAB (PC), 2024 WL 477982, at *1 (E.D. Cal. Jan. 25, 2024) (“the Court has ‘repeatedly’ held 18 incarceration's challenges on litigation do not constitute an exceptional circumstance. [] If Plaintiff's 19 incarceration was an exceptional circumstance, any prisoner would be entitled to counsel”); 20 Dijkstra v. Campos, No. 1:21-cv-01223-HBK, 2022 WL 222518, at *1 (E.D. Cal. Jan. 25, 2022) 21 (“Plaintiff’s indigence does not qualify ‘as an exceptional circumstance in a prisoner civil rights 22 case’”); Gipbsin v. Kernan, No. 2:12-cv-0556 KJM DB P, 2021 WL 242570, at *2 (E.D. Cal. Jan. 23 25, 2021) (“Plaintiff’s inability to afford counsel has no bearing on either his likelihood of success 24 on the merits or his ability to articulate his claims pro se”); Robinson v. Cryer, No. 1:20-cv-00622- 25 HBK (PC), 2021 WL 9541411, at *1 (E.D. Cal. Jan. 11, 2021) (“Although Plaintiff is proceeding 26 pro se and is incarcerated, he faces the same obstacles all pro se prisoners face”); Callender v. 27 Ramm, No. 2:16-cv-0694 JAM AC P, 2018 WL 6448536, at *3 (E.D. Cal. Dec. 10, 2018) (“The 1 warrant the appointment of counsel”). 2 Plaintiff is further advised that the fact an attorney may be better able to perform research, 3 investigate, and represent a plaintiff during discovery and at trial does not amount to an exceptional 4 circumstance. Rand, 113 F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) 5 when district court denied appointment of counsel despite fact that pro se prisoner “may well have 6 fared better-particularly in the realm of discovery and the securing of expert testimony”); Wilborn 7 v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (same); Courtney v. Kandel, No. 2:18-CV- 8 2052-KJM-DMC-P, 2020 WL 1432991, at *1 (E.D. Cal. Mar. 24, 2020) (challenges conducting 9 discovery and preparing for trial “are ordinary for prisoners pursuing civil rights claim” and cannot 10 form the basis for appointment of counsel); Lopez v. Cate, No. 1:10-cv-01773-AWI-SKO-PC, 2015 11 WL 2409281, at *1 (E.D. Cal. May 19, 2015) (“this case does not present ‘exceptional 12 circumstances’ supporting a need for appointment of counsel to represent Plaintiff, either generally 13 or with respect to the evidentiary hearing”); Ricks v. Austria, No. 1:15-cv-01147-BAM (PC), 2016 14 WL 1734326, at *2 (E.D. Cal. May 2, 2016) (while a pro se litigant may be better served with the 15 assistance of counsel were the case to proceed to trial, the court need not appoint counsel if plaintiff 16 can articulate his claims and exceptional circumstances do not exist); Thornton v. Schwarzenegger, 17 No. 10CV01583 BTM RBB, 2011 WL 90320, at *7 (S.D. Cal. Jan. 11, 2011) (explaining that 18 “[f]actual disputes and anticipated cross-examination of witnesses do not indicate the presence of 19 complex legal issues warranting a finding of exceptional circumstances”). 20 Finally, while the Court appreciates Plaintiff’s efforts to secure counsel, (see Doc. 36 at 6), 21 the inability to find counsel is not “a proper factor for the Court to consider in determining whether 22 to request counsel.” Howard v. Hedgpeth, No. 1:08-cv-00859-RTB-PCL, 2010 WL 1641087, at *2 23 (E.D. Cal. Apr. 20, 2010). 24 In sum, the test is not whether Plaintiff would benefit from the appointment of counsel— 25 the test is whether exceptional circumstances exist. See Wilborn, 789 F.2d at 1331. Here, no 26 exceptional circumstances exist warranting the appointment of counsel. 27 2. The Court Will Deny Plaintiff’s Motion to Appoint an Expert Under Rule 706 1 The Court finds that even if Plaintiff truly seeks only a neutral expert rather than an expert appointed 2 for his benefit, appointment of a neutral expert is not warranted at this early stage of the litigation. 3 On July 10, 2025, the Court issued a scheduling order. (Doc. 35). No dispositive motions been filed. 4 (See generally Docket). At this stage of the litigation, the undersigned cannot determine whether 5 appointment of an expert is required to advise the court on complex scientific, medical or technical 6 matters.1 7 III. CONCLUSION AND ORDER 8 Based on the foregoing, the Court HEREBY ORDERS that Plaintiff’s Motion for Court to 9 Request Counsel to Represent Plaintiff or, in the Alternative, Appoint a Neutral Expert Witness, 10 (Doc. 36), is DENIED. 11 IT IS SO ORDERED. 12

13 Dated: November 25, 2025 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 14

15 16 17 18 19 20 21 22 23 24 25 26 27 1 The court may still appoint an expert witness if trial issues of sufficient complexity arise at a later stage of the