Carroll v. California Department of Corrections ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 ABONILICO CARROLL, Case No.: 19-cv-2126-BAS-KSC 14 Plaintiff, ORDER DENYING PLAINTIFF’S 15 v. MOTION FOR ORDER APPOINTING EXPERT WITNESS 16 CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., 17 [Doc. No. 74] Defendants. 18 19 20 Plaintiff Abonilico Carroll is proceeding pro se and in forma pauperis in this civil 21 rights action pursuant to 42 U.S.C. § 1983. See Doc. No. 1. Before the Court plaintiff’s 22 Motion for Order Appointing Expert Witness (the “Motion”). Doc. No. 74. Defendants 23 oppose the Motion. Doc. No. 78. Having considered the parties’ arguments and the 24 applicable law, and for the reasons stated below, plaintiff’s Motion is DENIED. 25 As set forth in the operative complaint, plaintiff alleges that defendants failed to 26 protect him when they required him to walk up stairs to his bunk after he was recovering 27 from surgery, despite a recommendation from his surgical team that he would need to 28 remain in a wheelchair for 4 to 8 weeks while he recovered. See generally Doc. No. 30. 1 Plaintiff alleges he fell as he ascended the stairs and was injured. Id. at 8. Plaintiff also 2 alleges that he “suffers from depression, anxiety and P.T.S.D.,” and that defendants’ 3 treatment of him caused him to feel “hopeless[,] shocked and very depressed.” Id. at 8, 9. 4 In his Motion, plaintiff requests that the Court appoint “an impartial medical and 5 psychiatric expert” to examine him and “determin[e] whether plaintiff has a psychosis.” 6 Doc. No. 74 at 1. Plaintiff further requests that if the expert determines that a psychosis 7 exists, the expert should provide an opinion as to the cause of the psychosis, including 8 whether it is “the result … of the injuries sustained by plaintiff in the fall” and the extent 9 to which plaintiff is “disabled” by any such psychosis. Id. Plaintiff asks the Court to 10 require the expert to prepare a written report and testify at trial regarding “the cause, the 11 effect and prognosis of plaintiff’s injuries and disability.” Id. Attached to plaintiff’s 12 motion are records from an April 2021 visit with a mental health care provider during 13 which he related to the provider that the alleged fall “triggered” nightmares and PTSD 14 symptoms. Id. at 4. 15 As an initial matter, the Court notes that plaintiff purported to move on behalf of 16 defendants and signed his motion as the “attorney for” defendants’ counsel. Id. at 1, 2. 17 Plaintiff is admonished that he may not represent, or claim to represent, anyone other than 18 himself in this litigation. See Johns v. Cty. of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) 19 (“a non-lawyer ‘has no authority to appear as an attorney for others than himself’”) (citation 20 omitted); see also CivLR 83.11. The Court will not accept for filing any further 21 motions or other filings from plaintiff that are made, or claim to be made, for any 22 other person. 23 The Court turns to the merits of plaintiff’s Motion. Pursuant to Federal Rule of 24 Evidence 706, the Court may, on its own motion or a motion by a party, appoint an 25 independent expert to make findings and provide testimony. Fed. R. Evid. 706. “Such an 26 appointment is within the discretion of the trial judge and may be appropriate when 27 ‘scientific, technical or other specialized knowledge will assist the trier of fact to 28 understand the evidence or decide a fact in issue.’” Patton v. Loadholt, 445 F. Supp. 3d 1 || 802, 803 (E.D. Cal. 2020) (citation omitted). However, neither Federal Rule of Evidence 2 || 706 nor the in forma pauperis statute (28 U.S.C. § 1915) authorize the Court to appoint an 3 ||expert to act as an advocate for a party. Id.; see also Carley v. Genny, 454 F. Supp. 3d 4 1006, 1007 (D. Nev. 2020) (“The in forma pauperis statute ... does not provide for the 5 || appointment of expert witnesses to aid prisoners or other indigent litigants.”’). 6 It appears to the Court that plaintiff seeks by his Motion to have the Court appoint a 7 || witness to aid plaintiff in establishing the existence and extent of his injuries. The Court 8 declines to do so. Plaintiff may, of course, retain his own expert to testify to these issues. 9 || See Stakey v. Stander, Case. No. 1:09-CV-00094-BLW, 2011 WL 887563, at *5 (D. Id. 10 10, 2011) (denying motion to appoint expert and noting that “[n]Jothing prevents 11 [p]laintiff from obtaining his own expert witness”). The Court further finds that the 12 || appointment of a neutral expert is unwarranted and premature at this stage of the litigation. 13 || Although plaintiff refers to a “hopeless conflict in the conclusions of the medical and 14 || psychiatric experts employed by the parties” (Doc. No. 74 at 2), the Court’s review of the 15 ||record reveals no such conflict presently before the Court. See Lopez v. Ko, Case No. 16 20cv2236-CAB (NLS), 2021 WL 1753638, at *1 (S.D. Cal. Mar. 26, 2021) (denying 17 motion to appoint counsel where “there are no pending motions that require the Court to 18 || adjudicate any issues”). Accordingly, plaintiff's Motion is DENIED. 19 ORDER 20 For the reasons stated above, plaintiff's Motion for an Order Appointing Expert 21 || Witness [Doc. No. 74] is DENIED. 22 || IT ISSO ORDERED. 23 ||Dated: October 12, 2021 Mh 24 WU LA SSS 5 Hori. Karen S. Crawford United States Magistrate Judge 26 27 28