Venson v. Jackson

• Court: District Court, S.D. California
• Decided: February 19, 2020
• Docket: 3:18-cv-02278
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 Case No.: 18CV2278-BAS (BLM) 10 CLIFFORD ALLAN VENSON,

11 Plaintiff, ORDER DENYING PLAINTIFF’S MOTIONS FOR EXPERT WITNESS AND 12 v. REQUEST FOR JUDICIAL NOTICE

13 SERGEANT Q. JACKSON, et al., [ECF Nos. 73, 75, 78, AND 80] 14 Defendants. 15 16 17 18 I. MOTIONS FOR EXPERT WITNESSES 19 Currently before the Court are Plaintiff’s Motions for Expert Witness [ECF Nos. 73, 75, 20 and 78], Defendants A. Diaz, Q. Jackson, and J. Knight’s opposition to the motions [ECF No. 21 82], and Defendant R. Hernandez’s Joinder to Defendants’ opposition [ECF No. 83]. Having 22 considered all of the briefing and supporting documents, and for the reasons set forth below, 23 the Court DENIES Plaintiff’s Motions for Expert Witness. 24 RELEVANT BACKGROUND 25 On October 28, 2019, Plaintiff, a prisoner proceeding and , filed 26 a Second Amended Complaint under 42 U.S.C. § 1983 against three correctional officers and 27 one sergeant alleging retaliation and the use of unnecessary and excessive force while Plaintiff 28 was handcuffed. ECF No. 60. 1 PLAINTIFF’S MOTIONS 2 On January 14, 2020, Plaintiff submitted a Motion for Expert Witness that was received 3 by the Court on January 23, 2020 and accepted on discrepancy on January 28, 2020. ECF Nos. 4 72 and 73. Plaintiff seeks to have the Court appoint Correctional Consultant James M. Esten as 5 his expert and to pay for the cost of his services. ECF No. 73 at 2. Plaintiff proposes that the 6 Court deduct the cost of Mr. Esten’s services from his damages if he is successful and judgment 7 is rendered in his favor. Id. Plaintiff reached out to Mr. Esten via letter on December 29, 2019 8 and received a response seeking additional information on January 6, 2020. Id. at 9 (letter from 9 Mr. Esten to Plaintiff noting that he does not do work and that Plaintiff’s case could 10 easily cost in excess of $5,000.00). Plaintiff notes that he is filing this motion in part to satisfy 11 the January 31, 2020 deadline for expert designations. Id. at 7 (“Plaintiff’s Decl.”); see also ECF 12 No. 53 at 1. Plaintiff argues that an expert will “be able to provide information that [Plaintiff] 13 does not have access to.” Plaintiff’s Decl. at ¶ 4. Finally, Plaintiff states that he “has been 14 denied all discovery requested.” ECF No. 73 at 5. 15 On January 18, 2020, Plaintiff submitted a second Motion for Expert Witness that was 16 received by the Court on January 24, 2020 and accepted on discrepancy on January 28, 2020. 17 ECF Nos. 74 and 75. It appears that Plaintiff seeks to have the Court engage the services of 18 The Solutions Team @ Wexco on behalf of Plaintiff. Id. at 3. The Solutions Team @ Wexco’s 19 services include: 20 depositions (witness & opposing experts) identify key documents, develop 21 questions areas, analyze testimony & exhibits. Key documents – photos, incident reports. Key inquires: responsibility & conduct actions. 22 23 Id. Plaintiff notes that defense counsel has not responded to his discovery requests. Id. at 5. 24 On January 29, 2020, Plaintiff submitted a Motion for Expert Witness that was received 25 by the Court on February 3, 2020 and accepted on discrepancy on February 4, 2020. ECF Nos. 26 77 and 78. Plaintiff again seeks to have the Court appoint Correctional Consultant James M. 27 Esten as his expert and to pay for the cost of his services. ECF No. 78 at 4. Plaintiff notes that 28 1 Mr. Esten will provide “information on procedure & speak comprehensively about custody & use 2 of force.” Id. Specifically, Plaintiff plans to use Mr. Esten’s expertise “as it applies to the training 3 of new correctional officers & prison culture as it applies to inmates[s] & staff.” Id. Mr. Esten 4 charges $75 per hour for travel, $200 per hour for research and for deposition testimony, $1000 5 for court appearances, $95-$115 for each exhibit, and the government rate for personal vehicle 6 use, and expenses. Id. at 10. Plaintiff notes that defense counsel ignored the First Set of 7 Interrogatories that Plaintiff served on September 16, 2019.1 Id. at 5. 8 DEFENDANTS’ OPPOSITION 9 On February 10, 2020, Defendants A. Diaz, Q. Jackson, and J. Knight filed an opposition 10 to Plaintiff’s motions to appoint expert witnesses. ECF No. 82. Defendants contend that “expert 11 testimony is not appropriate when the jury can easily understand the allegations” and that 12 “Plaintiff’s request for the Court to pay for an expert adverse to the defense is not supported by 13 case law.” Id. at 2 and 4. Defendants also contend that Plaintiff’s allegations of excessive force 14 and retaliation “are straightforward and can be easily understood by a lay person without expert 15 opinion.” Id. at 2. Defendants note that Plaintiff is not required to have an expert and that 16 Plaintiff’s complaints about Defendants’ lack of discovery responses are incorrect and better 17 suited to a motion to compel. Id. at 2-3. Finally, Defendants contend that the case law does 18 not support Plaintiff’s request that the Court appoint an expert that will only advocate for 19 Plaintiff. Id. at 4-5. 20 On February 11, 2020, Defendant R. Hernandez filed a joinder to co-defendants’ 21 opposition to Plaintiff’s motion to appoint expert witnesses. ECF No. 83. Defendant Hernandez 22 states that he joins Defendants’ opposition brief and that

23 24 1 Plaintiff’s discovery concerns should not be raised in a Motion for Expert Witness. If Plaintiff has properly served discovery on Defendants and Defendants have not responded, Plaintiff may 25 file a motion to compel discovery. The motion to compel discovery responses must include the specific discovery requests, proof that the requests were served on Defendant(s), any response 26 received from Defendant(s), a description of Plaintiff’s efforts to meet and confer with 27 Defendants’ counsel regarding the discovery, and legal and factual support for Plaintiff’s motion to compel. The Court notes that Defendants state that they “have not received any discovery 28 1 [i]n sum, expert witnesses are not needed to help the jury to assess whether the force used was reasonable, as this is a factual issue for the jury. Similarly, an 2 expert witness is not needed to help explain the grievance process to the jury. 3 4 Id. at 1. 5 LEGAL STANDARD 6 Rule 706 of the Federal Rules of Evidence authorizes the Court to appoint an independent 7 expert. Such an appointment is within the discretion of the trial judge and may be appropriate 8 when “scientific, technical, or other specialized knowledge will assist the trier of fact to 9 understand the evidence or decide a fact in issue.” See Torbert v. Gore, 2016 WL 3460262, at 10 *2 (S.D. Cal. June 23, 2016) (citation omitted); see also Armstrong v. Brown, 768 F.3d 975, 987 11 (9th Cir. 2014) (“A Rule 706 expert typically acts as an advisor to the court on complex scientific, 12 medical, or technical matters.”). An expert appointed pursuant to Rule 706 does not serve as 13 an advocate for either party, and each party retains the ability to call its own experts. Fed. R. 14 Evid. 706(e); Faletogo v. Moya, 2013 WL 524037, at *2 (S.D. Cal. Feb. 12, 2013) (Rule 706 15 “does not contemplate court appointment and compensation of an expert witness as an advocate 16 for one of the parties.”). “The statute, 28 U.S.C. § 1915, does not authorize 17 federal courts to appoint or authorize payment for expert witnesses for prisoners or other 18 indigent litigants.” Stakey v. Stander, 2011 WL 887563, at *3 n.1 (D. Idaho Mar. 10, 2011); 19 see also Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993) (“The magistrate judge correctly ruled 20 that 28 U.S.C. § 1915, the statute, does not waive payment of fees or expenses 21 for witnesses.”). “Ordinarily, the plaintiff must bear the costs of his litigation, including expert 22 expenses, even in cases.” Stakey, 2011 WL 887573, at *3 n.1. 23 DISCUSSION 24 Plaintiff’s claims of retaliation and excessive force are not so complex as to warrant the 25 testimony of an expert. In evaluating a claim of excessive force, the focus is “whether force 26 was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically 27 to cause harm.” Faletogo, 2013 WL 524037, at *2 (quoting Hudson v. McMillian, 503 U.S. 1, 7 28 (1992)). This issue can be understood by a jury without the assistance of “scientific, technical, 1 or other specialized knowledge.” Torbert, 2016 WL 3460262, at *2. Plaintiff does not argue or 2 present evidence establishing that his case involves complex or technical matters and the Court 3 finds that it does not. Plaintiff appears to be asking the Court to appoint an expert because he 4 cannot afford to do so and he would like to have an expert support his position. This is not an 5 appropriate basis for the appointment of an independent expert under Rule 706. See Noble v. 6 Adams, 2009 WL 3028242, at *1 (E.D. Cal. Sept. 16, 2009) (denying plaintiff’s motion for 7 appointment of a Rule 706 expert in a § 1983 civil rights action where “the issues [we]re not so 8 complex as to require the testimony of the expert witness to assist the trier of fact” and 9 reasoning that “Plaintiff has not requested an expert because one is needed to assist the court. 10 Rather Plaintiff is requesting an expert because he cannot afford to hire one.”); see also 11 Faletogo, 2013 WL 524037, at *2. Accordingly the Court finds that a court-appointed expert is 12 not appropriate for this case and DENIES Plaintiff’s motion for such an appointment. 13 The denial of a court-appointed expert does not prevent any party from presenting expert 14 testimony. Fed. R. Evid. 706(e). Here, Plaintiff seems to be filing his motions in part because 15 he did not want to miss the January 31, 2020 deadline for expert designation. ECF No. 53 at 1; 16 see also ECF No. 73 at 7 (“I did want to provide the initial letter as evidence before the 1-31- 17 20” deadline); and ECF No. 75 at 2 (“Plaintiff prays that this Court allow additional time beyond 18 January 31, 2020 for Plaintiff to provide support documentation.”). If Plaintiff wants to hire an 19 expert to help him with his case, Plaintiff may do so but Plaintiff must pay the expert’s costs. 20 To accommodate Plaintiff’s apparent desire to hire an expert, the Court GRANTS Plaintiff’s 21 motion to extend the expert discovery deadlines. If Plaintiff wants to designate an expert, he 22 must do so by March 16, 2020. If he does designate an expert, Plaintiff also must provide the 23 required expert disclosures by March 16, 2020. If Plaintiff does designate an expert witness, 24 Defendants may designate a rebuttal expert witness, and provide the required disclosures, by 25 April 13, 2020.2 The Court notes that the statute, 28 U.S.C. § 1915, “does 26

27 2 With the exception of the expert discovery deadline which is continued from March 27, 2020 28 1 not waive payment of fees or expenses for witnesses” so Plaintiff must pay his expert’s fees and 2 costs. Dixon, 990 F.2d at 480 (denying compensation for two medical doctors subpoenaed to 3 testify on prisoner’s behalf in 42 U.S.C. § 1983 action); see also Bovarie v. Schwarzenegger, 4 2011 WL 7468597, at *19 (S.D. Cal. Sept. 21, 2011) (citing Hadsell v.Comm’r, 107 F.3d 750, 5 752 (9th Cir. 1997)) (“Section 1915 . . . does not authorize federal courts to finance or subsidize 6 a civil action or appeal by paying expert fees or other costs.”). Thus, while Plaintiff may designate 7 an expert witness as set forth above, he must pay for that expert himself and to the extent he 8 is requesting payment of expert fees under 28 U.S.C. § 1915, Plaintiff’s request is DENIED. 9 II. MOTION FOR JUDICIAL NOTICE 10 On January 28, 2020, Plaintiff submitted a Motion for Judicial Notice that was received 11 by the Court on February 3, 2020 and accepted on discrepancy on February 4, 2020. ECF Nos. 12 79 and 80. Plaintiff requests that the Court take judicial notice of another case in this district, 13 Moody, et al., v. California Department of Corrections and Rehabilitation, et al, Case Number 14 18cv1110-WQH(AGS), that involves some of the same defendants as the Defendants in the 15 instant matter and similar claims. ECF No. 80 at 1. Plaintiff argues that this information 16 demonstrates that “the culture and conduct of defendants described by all plaintiffs who are all 17 ‘black’ is consist[e]nt.” Id. at 2. 18 Under Federal Rule of Evidence 201(b), “a court may take judicial notice of ‘matters of 19 public record.’” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (quoting Mack v. 20 S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986)). Additionally, a court has authority 21 to take judicial notice of a fact “not subject to reasonable dispute because it: (1) is generally 22 known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily 23 determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 24 201(b); see also Lee, 250 F.3d at 689-90. 25 Plaintiff has not tied his request for judicial notice to an actual purpose or pending motion 26 in this case. Plaintiff was not involved in the allegations being made in the Moody matter and 27 the Moody Plaintiffs are not involved in this instant matter. The fact that there may be some 28 overlap between Defendants in both cases is not a matter needing or requiring judicial notice. 1 || In addition, Plaintiff's request is based on his argument that the Moody case involves “the same 2 substantially the same parties.” Id. at 1. The Moody case involves four Plaintiffs, none of 3 |}whom are a party to the instant matter. Id. at Exh. A. The Moody case also names thirteen 4 ||defendants, only two of whom are also named in this case, Defendant Paramo and Defendant 5 ||Duran.? Id. Accordingly, Plaintiff's motion is DENIED. 6 IT 1S SO ORDERED. . 7 ||Dated: 2/19/2020 lxiobee Mager 8 Hon. Barbara L. ajor 9 United States Maaistrate Judae

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3 While two of the Moody Defendants appeared in this case, Defendant Paramo was dismissed 28 |! from the instant matter on August 13, 2019. See Docket; see also ECF No. 51.