(PC) Patton v. Loadholt ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY L. PATTON, No. 2:19-cv-0451 KJN P 12 Plaintiff, 13 v. ORDER 14 F.N.P. LOADHOLT, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, with a civil rights 18 action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for a court- 19 appointed expert witness (a urologist). (ECF No. 41.) For the reasons stated herein, plaintiff’s 20 motion is denied. 21 Rule 706 of the Federal Rules of Evidence authorizes the court to appoint an independent 22 expert. Such an appointment is within the discretion of the trial judge and may be appropriate 23 when “scientific, technical, or other specialized knowledge will assist the trier of fact to 24 understand the evidence or decide a fact in issue.” See Torbert v. Gore, 2016 WL 3460262, at *2 25 (S.D. Cal. June 23, 2016) (citation omitted); see also Armstrong v. Brown, 768 F.3d 975, 987 (9th 26 Cir. 2014) (“A Rule 706 expert typically acts as an advisor to the court on complex scientific, 27 medical, or technical matters.”). 28 An expert appointed pursuant to Rule 706 does not serve as an advocate for either party, 1 | and each party retains the ability to call its own experts. Fed. R. Evid. 706(e); Faletogo v. Moya, 2 | 2013 WL 524037, at *2 (S.D. Cal. Feb. 12, 2013) (Rule 706 “does not contemplate court 3 | appointment and compensation of an expert witness as an advocate for one of the parties.”). “The 4 | in forma pauperis statute, 28 U.S.C. § 1915, does not authorize federal courts to appoint or 5 | authorize payment for expert witnesses for prisoners or other indigent litigants.” Stakey v. 6 | Stander, 2011 WL 887563, at *3 n.1 (D. Idaho Mar. 10, 2011); see also Dixon v. Ylst, 990 F.2d 7 | 478, 480 (9th Cir. 1993) (“The magistrate judge correctly ruled that 28 U.S.C. § 1915, the in 8 | forma pauperis statute, does not waive payment of fees or expenses for witnesses.”). “Ordinarily, 9 | the plaintiff must bear the costs of his litigation, including expert expenses, even in pro se cases.” 10 | Stakey, 2011 WL 887573, at *3 n.1. 11 In this case, it appears that plaintiff is seeking to have the court appoint an expert witness 12 || to advocate on his behalf, which is not authorized by Rule 706. Even if plaintiff is truly seeking a 13 | neutral expert, the undersigned finds that appointment of a neutral expert is not warranted at this 14 | early stage of the litigation. On March 17, 2020, the court issued a scheduling order. No 15 | dispositive motions been filed. At this stage of the litigation, the undersigned cannot determine 16 | whether appointment of an expert is required to advise the court on complex scientific, medical or 17 || technical matters. 18 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for a court-appointed 19 || expert witness (ECF No. 41) is denied. 20 | Dated: April 8, 2020 Aectl Aharon 22 KENDALL J.NE 33 patt045131c UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28