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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 William James Mathew Wallace II, CASE NO. 3:19-cv-05329-RBL- 11 Plaintiff, DWC
12 v. ORDER 13 Pierce County Sheriff's Department, 14 Defendant.
15 16 Before the Court are three motions filed by Plaintiff: (1) “Motion to Request the 17 Appointment of Counsel” (“Motion to Appoint Counsel”) (Dkt. 25); (2) “Motion to Enter 18 Additional Supporting Evidence re Amended Complaint” (“Motion to Supplement”) (Dkt. 28); 19 and (3) “Motion Seeking Court to Appoint Expert Witness” (“Motion to Appoint Expert 20 Witness”) (Dkt. 28). 21 After review of the Motions and relevant record, Plaintiff’s Motion to Appoint Counsel 22 (Dkt. 25) and Motion to Appoint Expert Witness (Dkt. 29) are denied without prejudice. The 23 Court grants Plaintiff’s Motion to Supplement (Dkt. 28) and Plaintiff may file a proposed second 24 amended complaint on or before September 3, 2019. 1 A. Motion to Appoint Counsel (Dkt. 25) 2 Plaintiff requests appointment of counsel. Dkt. 25. No constitutional right to appointed 3 counsel exists in a § 1983 action. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see 4 United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995) (“[a]ppointment
5 of counsel under this section is discretionary, not mandatory”). However, in “exceptional 6 circumstances,” a district court may appoint counsel for indigent civil litigants pursuant to 28 7 U.S.C. § 1915(e)(1) (formerly 28 U.S.C. § 1915(d)). Rand v. Roland, 113 F.3d 1520, 1525 (9th 8 Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th Cir. 1998). To decide whether 9 exceptional circumstances exist, the Court must evaluate both “the likelihood of success on the 10 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity 11 of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) 12 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). A plaintiff must plead facts 13 showing he has an insufficient grasp of his case or the legal issues involved and an inadequate 14 ability to articulate the factual basis of his claims. Agyeman v. Corrections Corp. of America,
15 390 F.3d 1101, 1103 (9th Cir. 2004). 16 Plaintiff contends Defendants have been uncooperative, and he has been transferred 17 several times which has limited access to his records. Dkt. 25 at 1-2. Plaintiff alleges he lacks 18 resources, knowledge, and “other tools to mount a successful argument in trial or even in 19 negotiations.” Dkt. 25 at 10. This case does not involve complex facts or law, and Plaintiff has 20 not shown an inability to articulate the factual basis of his claims in a fashion understandable to 21 the Court. As the Court has screened and declined to serve Plaintiff’s Original Complaint, 22 Plaintiff has also not shown he is likely to succeed on the merits of his case. Accordingly, 23 Plaintiff’s Motion to Appoint Counsel (Dkt. 25) is denied without prejudice.
24 1 B. Motion to Supplement (Dkt. 28) 2 Plaintiff seeks permission to file a supplement to his Amended Complaint. Dkt. 28. 3 Plaintiff states he needs to add evidence to his Amended Complaint which he recently obtained. 4 Dkt. 28 at 2. Plaintiff also appears to include additional factual allegations in his Motion to
5 Supplement. See Dkt. 28. Plaintiff has not attached a proposed second amended complaint. See 6 Dkt. 7 Here, the Court previously screened Plaintiff’s Original Complaint and directed Plaintiff 8 to file an Amended Complaint by August 1, 2019. Dkts. 17, 23, 24. Plaintiff filed his Amended 9 Complaint on July 22, 2019. Dkt. 27. Three days later, on July 25, 2019, Plaintiff moved for the 10 Court to allow him to supplement the Amended Complaint. Dkt. 28. Because Defendants have 11 not yet been served with Plaintiff’s Amended Complaint, and because the Court has already 12 provided Plaintiff leave to amend, Plaintiff’s Motion to Supplement (Dkt. 28) is granted. Plaintiff 13 may file a proposed second amended complaint on or before September 3, 2019. 14 The proposed second amended complaint must be legibly rewritten or retyped in its
15 entirety, it should be an original and not a copy, it should contain the same case number, and it 16 may not incorporate any part of the Amended Complaint (Dkt. 27) by reference. The proposed 17 second amended complaint will act as a complete substitute for the Amended Complaint, and not 18 as a supplement. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). The Court will 19 screen the proposed second amended complaint to determine if Plaintiff has sufficiently stated a 20 claim for relief under 42 U.S.C. § 1983. See 28 U.S.C. § 1915A(a). 21 If Plaintiff fails to file a proposed second amended complaint on or before September 3, 22 2019, this case will proceed on the Amended Complaint (Dkt. 27). 23
24 1 C. Motion to Appoint Expert Witness (Dkt. 29) 2 Plaintiff requests the Court appoint his treating orthopedic surgeon to support his claims 3 that Defendants acted with deliberate indifference, failed to make reasonable accommodations, 4 and failed to provide him with access to handicapped showers and a wheelchair. Dkt. 29 at 1-2.
5 Plaintiff argues the expert testimony will assist the Court or jury in “understanding the issue.” 6 Dkt. 29 at 6. In the alternative, Plaintiff argues “the prison officials [should] pay the entire cost 7 of the expert as [he] is indigent” or Plaintiff pay the costs of his expert witness and counsel from 8 any relief. Dkt. 29 at 6. 9 Federal Rule of Evidence 706 allows the court to appoint a neutral expert. Students of 10 Cal. Sch. For the Blind v. Honig, 736 F.2d 538, 549 (9th Cir. 1984), vacated on other grounds, 11 471 U.S. 148 (1985). The determination to appoint an expert rests solely in the court’s discretion 12 and the complexity of the matters to be determined and the need for neutral expert review. See 13 Leford v. Sullivan, 105 F.3d 354, 358-59 (9th Cir. 1997). “Appointment [of expert witnesses] 14 may be appropriate when ‘scientific, technical, or other specialized knowledge will assist the
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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 William James Mathew Wallace II, CASE NO. 3:19-cv-05329-RBL- 11 Plaintiff, DWC
12 v. ORDER 13 Pierce County Sheriff's Department, 14 Defendant.
15 16 Before the Court are three motions filed by Plaintiff: (1) “Motion to Request the 17 Appointment of Counsel” (“Motion to Appoint Counsel”) (Dkt. 25); (2) “Motion to Enter 18 Additional Supporting Evidence re Amended Complaint” (“Motion to Supplement”) (Dkt. 28); 19 and (3) “Motion Seeking Court to Appoint Expert Witness” (“Motion to Appoint Expert 20 Witness”) (Dkt. 28). 21 After review of the Motions and relevant record, Plaintiff’s Motion to Appoint Counsel 22 (Dkt. 25) and Motion to Appoint Expert Witness (Dkt. 29) are denied without prejudice. The 23 Court grants Plaintiff’s Motion to Supplement (Dkt. 28) and Plaintiff may file a proposed second 24 amended complaint on or before September 3, 2019. 1 A. Motion to Appoint Counsel (Dkt. 25) 2 Plaintiff requests appointment of counsel. Dkt. 25. No constitutional right to appointed 3 counsel exists in a § 1983 action. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see 4 United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995) (“[a]ppointment
5 of counsel under this section is discretionary, not mandatory”). However, in “exceptional 6 circumstances,” a district court may appoint counsel for indigent civil litigants pursuant to 28 7 U.S.C. § 1915(e)(1) (formerly 28 U.S.C. § 1915(d)). Rand v. Roland, 113 F.3d 1520, 1525 (9th 8 Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th Cir. 1998). To decide whether 9 exceptional circumstances exist, the Court must evaluate both “the likelihood of success on the 10 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity 11 of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) 12 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). A plaintiff must plead facts 13 showing he has an insufficient grasp of his case or the legal issues involved and an inadequate 14 ability to articulate the factual basis of his claims. Agyeman v. Corrections Corp. of America,
15 390 F.3d 1101, 1103 (9th Cir. 2004). 16 Plaintiff contends Defendants have been uncooperative, and he has been transferred 17 several times which has limited access to his records. Dkt. 25 at 1-2. Plaintiff alleges he lacks 18 resources, knowledge, and “other tools to mount a successful argument in trial or even in 19 negotiations.” Dkt. 25 at 10. This case does not involve complex facts or law, and Plaintiff has 20 not shown an inability to articulate the factual basis of his claims in a fashion understandable to 21 the Court. As the Court has screened and declined to serve Plaintiff’s Original Complaint, 22 Plaintiff has also not shown he is likely to succeed on the merits of his case. Accordingly, 23 Plaintiff’s Motion to Appoint Counsel (Dkt. 25) is denied without prejudice.
24 1 B. Motion to Supplement (Dkt. 28) 2 Plaintiff seeks permission to file a supplement to his Amended Complaint. Dkt. 28. 3 Plaintiff states he needs to add evidence to his Amended Complaint which he recently obtained. 4 Dkt. 28 at 2. Plaintiff also appears to include additional factual allegations in his Motion to
5 Supplement. See Dkt. 28. Plaintiff has not attached a proposed second amended complaint. See 6 Dkt. 7 Here, the Court previously screened Plaintiff’s Original Complaint and directed Plaintiff 8 to file an Amended Complaint by August 1, 2019. Dkts. 17, 23, 24. Plaintiff filed his Amended 9 Complaint on July 22, 2019. Dkt. 27. Three days later, on July 25, 2019, Plaintiff moved for the 10 Court to allow him to supplement the Amended Complaint. Dkt. 28. Because Defendants have 11 not yet been served with Plaintiff’s Amended Complaint, and because the Court has already 12 provided Plaintiff leave to amend, Plaintiff’s Motion to Supplement (Dkt. 28) is granted. Plaintiff 13 may file a proposed second amended complaint on or before September 3, 2019. 14 The proposed second amended complaint must be legibly rewritten or retyped in its
15 entirety, it should be an original and not a copy, it should contain the same case number, and it 16 may not incorporate any part of the Amended Complaint (Dkt. 27) by reference. The proposed 17 second amended complaint will act as a complete substitute for the Amended Complaint, and not 18 as a supplement. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). The Court will 19 screen the proposed second amended complaint to determine if Plaintiff has sufficiently stated a 20 claim for relief under 42 U.S.C. § 1983. See 28 U.S.C. § 1915A(a). 21 If Plaintiff fails to file a proposed second amended complaint on or before September 3, 22 2019, this case will proceed on the Amended Complaint (Dkt. 27). 23
24 1 C. Motion to Appoint Expert Witness (Dkt. 29) 2 Plaintiff requests the Court appoint his treating orthopedic surgeon to support his claims 3 that Defendants acted with deliberate indifference, failed to make reasonable accommodations, 4 and failed to provide him with access to handicapped showers and a wheelchair. Dkt. 29 at 1-2.
5 Plaintiff argues the expert testimony will assist the Court or jury in “understanding the issue.” 6 Dkt. 29 at 6. In the alternative, Plaintiff argues “the prison officials [should] pay the entire cost 7 of the expert as [he] is indigent” or Plaintiff pay the costs of his expert witness and counsel from 8 any relief. Dkt. 29 at 6. 9 Federal Rule of Evidence 706 allows the court to appoint a neutral expert. Students of 10 Cal. Sch. For the Blind v. Honig, 736 F.2d 538, 549 (9th Cir. 1984), vacated on other grounds, 11 471 U.S. 148 (1985). The determination to appoint an expert rests solely in the court’s discretion 12 and the complexity of the matters to be determined and the need for neutral expert review. See 13 Leford v. Sullivan, 105 F.3d 354, 358-59 (9th Cir. 1997). “Appointment [of expert witnesses] 14 may be appropriate when ‘scientific, technical, or other specialized knowledge will assist the
15 trier of fact to understand the evidence or decide a fact in issue....’ ” Levi v. Director of 16 Corrections, 2006 WL 845733 (E.D. Cal. March 31, 2006) (citing Ledford v. Sullivan, 105 F.3d 17 354, 358–59 (7th Cir. 1997). However, “[r]easonably construed, [Rule 706] does not 18 contemplate the appointment of, and compensation for, an expert to aid one of the parties.” 19 Walker v. Woodford, 2008 WL 793413 (S.D. Cal., March 24, 2008) (citation omitted). 20 The issue in this case is whether Defendants acted with deliberate indifference to 21 Plaintiff’s serious medical needs when they determined Plaintiff did not need surgery or certain 22 accommodations. For the most part, it appears Plaintiff requests the appointment of an expert for 23 his benefit alone. Essentially, Plaintiff is requesting the Court appoint an expert to serve as his
24 1 advocate and to create a triable issue of fact. This, however, is not the function of a neutral 2 expert witness. See Spinks v. Lopez, 2014 WL 411283, at *2 (E.D. Cal. Feb. 3, 2014), 3 subsequently aff'd, 623 F. App'x 499 (9th Cir. 2015) (“The appointment of an expert witness 4 under Rule 706 is intended to benefit the trier of fact, not a particular litigant[.]”). Bontemps v.
5 Lee, 2013 WL 417790, at *3–4 (E.D. Cal. Jan. 31, 2013); Gamez v. Gonzalez, 2010 WL 6 2228427, at *1 (E.D. Cal. Jun. 3, 2010). 7 To the extent Plaintiff’s request can be construed as a request for a neutral expert, the 8 facts of this case are not extraordinary, and the legal issues are not complex. See Sloan v. 9 Oakland Police Dep’t, 376 F. App’x 738, 740 (9th Cir. 2010); Honeycutt v. Snider, 2011 WL 10 6301429, at *1 (D. Nev. Dec. 16, 2011) (“The appointment of experts in deliberate indifference 11 cases is rare, and such requests should be granted sparingly, particularly given the large volume 12 of cases in which indigent prisoners allege claims under the Eighth Amendment related to 13 medical care, and the substantial expense defendants may have to bear if courts were to appoint 14 experts in such cases.”). Accordingly, at this stage of litigation, where the Court has not yet
15 directed service of Plaintiff’s Original or Amended Complaint, the Court does not need to 16 appoint a neutral expert. See e.g. Montanez v. Gonzalez, 2013 WL 6048132, *1 (E.D. Cal. Nov. 17 14, 2013), Brooks v. Tate, 2013 WL 4049043, at *1 (E.D. Cal. Aug. 7, 2013). Accordingly, the 18 Court denies Plaintiff’s Motion to Appoint an Expert Witness (Dkt. 29) without prejudice. 19 D. Conclusion 20 For the above stated reasons, Plaintiff’s Motion to Appoint Counsel (Dkt. 25) and Motion 21 to Appoint Expert Witness (Dkt. 29) are denied without prejudice. Neither counsel nor an expert 22 witness are necessary at this time. The Court grants Plaintiff’s Motion to Supplement (Dkt. 28). 23 Plaintiff shall have until September 3, 2019 to file a proposed second amended complaint. The
24 1 Clerk is directed to provide Plaintiff with the appropriate forms for filing a 42 U.S.C. § 1983 2 civil rights complaint. 3 Dated this 8th day of August, 2019. 4 A 5 David W. Christel 6 United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23