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Dennis A. Orr v. Warden At C.C.A. Phillip Valdez

November 1, 2011


The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge


Several motions are currently pending before the Court in this prisoner civil rights matter. In the interests of avoiding additional delay, the Court shall resolve these motions on the written record without oral argument. D. Idaho L. Civil R. 7.1(d).


Plaintiff is incarcerated at the Idaho Correctional Center (ICC). He claims that prison employees and officials have been deliberately indifferent to his serious medical needs, in violation of his rights under the Eighth Amendment. The Court conducted an initial review of Plaintiff's Amended Complaint, and allowed him to proceed against Dr. Klint Stander and Warden Phillip Valdez. The Court dismissed other defendants and claims.*fn1 (Dkt. 19, pp. 4-5.)

Defendants have filed an Answer, and the Court has issued a Scheduling Order. Currently pending are Plaintiff's motions for the appointment of counsel and expert assistance, and Plaintiff's motions related to discovery matters. Defendants have also filed a motion to strike an affidavit submitted by Plaintiff.


The Court previously denied Plaintiff's request for the appointment of counsel. (Dkt. 8, p. 12.) He has now renewed that request.

Unlike criminal defendants, prisoners and indigents in civil actions have no constitutional right to counsel unless their physical liberty is at stake. Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 25 (1981). Whether a court appoints counsel for indigent litigants is within the court's discretion. Wilborn v. Escalderon, 789 F.2d 1328, 1330-31 (9th Cir. 1986). In civil cases, counsel should be appointed only in "extraordinary cases." Id. at 1330. To determine whether extraordinary circumstances exist, the court should evaluate the likelihood of success on the merits of the case, and the ability of the plaintiff to articulate his claims pro se in light of the complexity of legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1990).

Applying the factors to this case, the Court reaffirms its conclusion that Plaintiff has articulated his claims sufficiently, the legal issues are not complex in this matter, and the likelihood of success on the merits is, at best, unclear at this juncture. If it is appropriate at a later date in this litigation, the Court will reconsider appointing counsel on its own motion.*fn2


Plaintiff has also requested that the Court appoint an expert to assist him in presenting his claims. (Dkt. 28.) The in forma pauperis statute, 28 U.S.C. § 1915, does not authorize federal courts to appoint or authorize payment for expert witnesses for prisoners or other indigent litigants. Ordinarily, the plaintiff must bear the costs of his litigation, including expert expenses, even in pro se cases. See Pedraza v. Jones, 71 F.3d 194, 196 (5th Cir. 1995); Malik v. LaVelley, 994 F.2d 90 (2d Cir. 1993); Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 1987) (noting that an inmate's dilemma in being unable to proceed with suit because of inability to pay for expert witness was no different than that of non-prisoner claimants who face similar problems).

A federal court may appoint an expert witness under Federal Rule of Evidence 706(a), with the expert's fees to be allocated among the parties "in such proportion and at such time as the court directs." Fed. R. Evid. 706(b). Under this rule, experts are properly appointed where complex scientific issues are involved, such as determining what the concentration levels of environmental tobacco smoke (ETS) are in a prison and determining the health effects of ETS on nonsmoking prisoners. McKinney v. Anderson, 924 F.2d 1500 (9th Cir. 1991), vacated on other grounds by Heiling v. McKinney, 502 U.S. 903 (1991). However, courts have recognized that "[r]easonably construed, Rule 706 does not contemplate the appointment of, and compensation for, an expert to aid one of the parties." See, e.g., Gamez v. Gonzalez, 2010 WL 2228427, *1 (E.D.Cal. June 3, 2010) (internal quotations, punctuation and citations omitted). In other words, the principal purpose of a court-appointed expert is to assist the trier of fact from a position of neutrality, not to serve as an advocate.

At issue in this matter is whether prison medical staff were deliberately indifferent to Plaintiff's back, leg, and knee pain and other medical problems. The issue of deliberate indifference regarding these medical issues is not so complicated and difficult that an expert is required to present or prove the case. Moreover, the facts at issue in this matter are not scientifically complex like the facts at issue in McKinney. The Court will not appoint a Rule 706 expert witness.

Nothing prevents a party from obtaining his own expert witness at his own cost to aid him in his case. Fed. R. Evid. 706(d). Plaintiff is free to obtain an outside expert opinion to support his case at his own ...

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