(PC)Seymour v. Shirley ( 2024 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 AARON D. SEYMOUR, Case No. 1:22-cv-00938-JLT-EPG (PC) 11 Plaintiff, ORDER FOR SUPPLEMENTAL BRIEFING ON 12 v. PLAINTIFF’S MOTION FOR APPOINTMENT OF NEUTRAL EXPERT 13 H. SHIRLEY, et al., (ECF No. 61) 14 Defendants. 15 16 Plaintiff Aaron D. Seymour is a state prisoner proceeding pro se and in forma pauperis 17 in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff alleges that the water at 18 Wasco State Prison is contaminated; the case is currently in discovery. 19 On September 3, 2024, Plaintiff filed a motion asking the Court to appoint a neutral 20 expert. (ECF No. 61). Plaintiff argues that an unbiased, neutral expert would assist the Court 21 and the jury with understanding matters at issue in this case, such as carcinogens in the water, 22 and could analyze “the medical assays, trays, bio-medicals that are at the center of this claim.” 23 (ECF No. 61 at 1–2). 24 The Court has the discretion to appoint an expert pursuant to Rule 706(a) of the Federal 25 Rules of Evidence. See Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 26 1065, 1071 (9th Cir. 1999). In relevant part, Rule 706(a) states that, “[o]n a party’s motion or 27 on its own, the court may order the parties to show cause why expert witnesses should not be 28 appointed . . . .” Fed. R. Evid. 706(a). Additionally, the Rule states “The expert is entitled to a 1 || reasonable compensation, as set by the court. The compensation is payable as follows ... by 2 || the parties in the proportion and at the time that the court directs — and the compensation is 3 || then charged like other costs.” Fed. R. Evid. 706 (c)(2). While the Court has the discretion to 4 || appoint an expert and to apportion costs, including the apportionment of costs to one side, Fed. 5 Evid. 706(c)(2); Ford ex rel. Ford v. Long Beach Unified School Dist., 291 F.3d 1086, 1090 6 || (9th Cir. 2002), Rule 706 is not a means to avoid the in forma pauperis statute’s “prohibition 7 || against using public funds to pay for the expenses of witnesses,” Manriquez v. Huchins, 2012 8 || WL 5880431, at *12 (E.D. Cal. 2012), nor does Rule 706 “contemplate court appointment and 9 || compensation of an expert witness as an advocate for one of the parties,” Faletogo v. Moya, 10 |] 2013 WL 524037, at *2 (S.D. Cal. 2013). 11 With these legal standards in mind, the Court orders the following briefing schedule for 12 || Plaintiff's motion for appointment of an expert witness. 13 Accordingly, IT IS ORDERED that: 14 1. Within two weeks of this Order, Defendants shall file a response to Plaintiff's 15 Motion (ECF No. 61) for appointment of neutral expert. If no response is filed 16 by that date, the Court will consider Plaintiff's motion unopposed. 17 2. Plaintiff may file a Reply two weeks after Defendants’ response, if any is filed. 18 19 IT IS SO ORDERED. 20 Dated: _ September 16, 2024 [Je hey — 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28