(PC) Khademi v. Jimmanz ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KHADEMI DAVOOD, Case No. 1:21-cv-01394-SAB (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF EXPERT 13 v. PSYCHOLOGIST AND INVESTIGATOR OR ATTORNEY 14 JIMMANZ, et al., (ECF No. 16) 15 Defendants. 16 17 18 19 Plaintiff Khademi Davood is proceeding pro se and in forma pauperis in this civil rights 20 action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s motion for 21 appointment of expert psychologist and investigator or attorney, filed December 16, 2021. (ECF 22 No. 16.) 23 Under Federal Rule of Evidence 706(a), the Court has the discretion to appoint an expert 24 witness sua sponte or upon a party’s motion and may apportion costs of an appointed expert. 25 Fed. R. Evid. 706; Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065, 26 1071 (9th Cir. 1999). However, the purpose of a court-appointed expert under Rule 706 is to 27 assist the trier of fact, not to serve as an advocate. See Pedraza v. Jones, 71 F.3d 194, 196 (5th 28 Cir. 1995) (“[t]he plain language of section 1915 does not provide for the appointment of expert 1 witnesses to aid an indigent litigant.”); accord, Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 2 1987), cert. denied, 485 U.S. 991 (1988). Importantly, these principals are not altered when a 3 district court authorizes a party to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 4 Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993); see also Tedder v. Odel, 890 F.2d 210, 211–12 5 (9th Cir. 1989) (an indigent prisoner must bear the costs of litigation, including payment of fees 6 or expenses for witnesses); Jacobsen v. California, No. 1:14-cv-00108-JLT (PC), 2016 WL 7 7429154 (E.D. Cal. Dec. 23, 2016) (“Plaintiff’s pro se, in forma pauperis status alone is not 8 grounds for the appointment of an expert witness to assist him with his case.”). Rather, an expert 9 may be appointed to assist the trier of fact only where it “will promote accurate factfinding.” 10 Gorton v. Todd, 793 F. Supp. 2d 1171, 1179 (E.D. Cal. 2011). “Further, in order to demonstrate 11 such necessity, there also must be some evidence, admissible or otherwise, that demonstrates a 12 serious dispute that could be resolved or understood through expert testimony.” Id. at 1181. 13 Finally, where the costs would likely be apportioned to the government, the Court “should 14 exercise caution.” Manriquez v. Huchins, No. 1:09-cv-00456-LJO-BAM PC, 2012 WL 5880431, 15 *12 (E.D. Cal. Nov. 21, 2012). “Rule 706 is not meant to provide an avenue to avoid [the in 16 forma pauperis statute] and the prohibition against using public funds to pay for the expenses of 17 witnesses.” Id. (collecting cases). The Court does not find any circumstances at this time that 18 warrant the appointment of an expert psychologist. At this early stage of the litigation, the Court 19 cannot determine that Plaintiff’s claims require expert assistance. Moreover, Plaintiff has not yet 20 alleged any cognizable claims; therefore, appointment of a medical expert is premature and shall 21 be denied. 22 As to his request for appointment of an investigator, as previously noted, Plaintiff has 23 been granted leave to proceed with this action in forma pauperis pursuant to 28 U.S.C. § 1915. 24 (ECF No. 6.) However, the in forma pauperis statute does not authorize the expenditure of public 25 funds for investigators. See 28 U.S.C. § 1915; see also Hadsell v. Internal Revenue Service, 107 26 F.3d 750, 752 (9th Cir. 1997); Dixon, 990 F.2d at 480; Brown v. Johnson & Johnson, Inc., Case 27 No. 1:17-cv-01285-AWI-EPF, 2018 WL 5734531, *2–3 (E.D. Cal. Oct. 31, 2018) (holding that 28 “the Court is without authority to appoint an investigator or researcher to assist Plaintiff.”). 1 | Accordingly, Plaintiff's request to appoint an investigator shall also be denied. 2 Alternatively, Plaintiff seeks appointment of an attorney. However, as the Court 3 | previously noted in its December 6, 2021 order denying a similar request to appoint counsel (see 4 | ECF No. 14), Plaintiff does not have a constitutional right to appointed counsel in this action, 5 | Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney 6 | to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court 7 | for the Southern District of Iowa, 490 U.S. 296, 298 (1989). For the same reasons previously 8 | discussed, the Court does not find the required exceptional circumstances present here. See Rand, 9 113 F.3d at 1525. Namely, Plaintiff has not demonstrated his case is exceptional. Wilborn v. 10 | Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Nor can the Court determine Plaintiff is likely 11 || to succeed on the merits where the Court’s December 15, 2021 screening order dismissed the first 12 | amended complaint for failure to state a cognizable claim (see ECF No. 15), and no amended 13 | complaint is yet on the record. Accordingly, Plaintiffs motion for the appointment of counsel 14 | shall be denied. 15 Based on the foregoing, it is HEREBY ORDERED that: 16 1. Plaintiff's motion to appoint an expert psychologist is DENIED; 17 2. Plaintiff's motion to appoint an investigator is DENIED; and 18 3. Plaintiff's motion for appointment of counsel is DENIED, without prejudice. 19 20 IT IS SO ORDERED. DAM Le 21 | Dated: _December 20, 2021 _ OO 0 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28