(PC) Smith v. CDCR ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL LENIOR SMITH, No. 2:18-cv-2942 KJM AC P 12 Plaintiff, 13 v. ORDER 14 CALIFORNIA DEPARTMENT OF CORRECTIONS AND 15 REHABILITATION, et al., 16 Defendants. 17 18 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 19 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 20 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 Plaintiff has filed objections to the October 5, 2022 order denying his motion for 22 appointment of an expert witness. ECF No. 69. Federal Rule of Civil Procedure 72(a) permits a 23 party to object to non-dispositive orders issued by magistrate judges and requires that the district 24 judge “modify or set aside any part of the order that is clearly erroneous or is contrary to law.” 25 Plaintiff argues that the magistrate judge’s denial of his request was in error because the Federal 26 Rules of Evidence provide for the appointment of an expert witness at defendants’ expense. 27 ECF No. 69 at 2. 28 //// ] Plaintiff appears to be referring to Federal Rule of Evidence 706, which authorizes the 2 || appointment of a neutral expert witness, with expenses shared by the parties. The appointment of 3 || an independent expert witness under Rule 706 is within the court’s discretion, Walker v. Am. 4 | Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999), and may be 5 || appropriate when “scientific, technical, or other specialized knowledge will assist the trier-of-fact 6 || to understand the evidence or decide a fact in issue,” Ledford v. Sullivan, 105 F.3d 354, 358-59 7 || (7th Cir. 1997). However, as the magistrate judge noted in denying plaintiffs request, the statute 8 | authorizing plaintiff's in forma pauperis status does not authorize the expenditure of public funds 9 || for expert witnesses, and the federal courts have uniformly held that an indigent prisoner litigant 10 || must bear his own costs of litigation, including for witnesses. See ECF No. 65 at 1 (citing 11 | 28 U.S.C. § 1915; Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989) (per curiam); Boring v. 12 || Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 1987)). Moreover, in this case, it appears plaintiff is 13 || seeking to have the court appoint an expert witness to advocate on his behalf, which is not 14 || authorized by Rule 706, and even if plaintiff is truly seeking a neutral expert, the court does not 15 | find the issues in this case are complicated such that the testimony of a neutral expert would be 16 || warranted. The September 28, 2022 order of the magistrate judge is therefore not clearly 17 || erroneous or contrary to law and the objections will be overruled. 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. Plaintiffs objections to the October 5, 2022 order denying his motion to compel (ECF 20 || No. 69) are OVERRULED and the October 5, 2022 order is AFFIRMED; and 21 2. This matter is referred back to the assigned magistrate judge for all further pretrial 22 || proceedings. 23 | DATED: December 14, 2022. 24 25 l tie / ¢ os CHIEF ONT] ED STATES DISTRICT JUDGE 27 28