Johnson v. Cate

Decision Date10 September 2015
Docket NumberCase No. 1:10-cv-00803-AWI-MJS (PC)
CourtU.S. District Court — Eastern District of California
PartiesGARRISON S. JOHNSON, Plaintiff, v. MATTHEW CATE, et al., Defendants.
ORDER TO DENY PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS AND MOTION TO APPOINT EXPERT WITNESS (ECF NO. 106);
FINDINGS AND RECOMMENDATION TO GRANT DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S SUR-REPLY (ECF NO. 99);
GRANT IN PART DEFENDANT'S MOTION TO STRIKE (ECF NO. 93);
DENY PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S EXPERT WITNESS'S DECLARATION (ECF NO. 85); AND
GRANT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 66)
FOURTEEN (14) DAY OBJECTION DEADLINE
I. INTRODUCTION AND PROCEDURAL HISTORY

Plaintiff is a state prisoner proceeding pro se in this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter proceeds against Defendant Harrington on Plaintiff's Eighth Amendment claim and state law negligence claim. (ECF Nos. 19, 20, and 23.) Specifically, Plaintiff claims that Defendant was deliberately indifferent to aserious risk of harm to Plaintiff from arsenic-contaminated water at Kern Valley State Prison ("KVSP") where Plaintiff was housed. (ECF No. 19.)

Defendant filed a motion for summary judgment on September 11, 2014. (ECF No. 66.) Plaintiff filed an opposition, in which he also moves to strike Defendant's expert witness's declaration. (ECF No. 85.) Defendant filed a reply (ECF No. 90), an opposition to Plaintiff's motion to strike (ECF No. 91), and a motion to strike Plaintiff's evidence (ECF No. 93). Plaintiff then filed a sur-reply (titled "Notice of Errata"), which includes a number of attachments intended to authenticate and substantiate claims made in Plaintiff's opposition. (ECF No. 94). Defendant moves to strike the sur-reply as unauthorized. (ECF No. 99.)

Previously, Plaintiff filed a motion to stay Defendant's motion for summary judgment on the ground that he intended to obtain a declaration from someone at the Center for Disease Control and Prevention to submit an opinion in support of his opposition to Defendant's motion. (ECF No. 95.) This motion was granted in part on July 6, 2015, and Plaintiff was granted thirty days to consult with a proposed expert witness. (ECF No. 105.) Following the conclusion of that 30-day period, Plaintiff filed a motion to proceed in forma pauperis and a motion for appointment of an expert witness. (ECF No. 106.)

These matters are deemed submitted pursuant to Local Rule 230(l).

II. PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS

Plaintiff has repeatedly sought to proceed in forma pauperis for the purpose of obtaining either the appointment of counsel or the appointment of an expert witness. (See ECF Nos. 33, 43, 56.) Each of these motions was denied because Plaintiff paid the filing fee in full on June 17, 2010. (ECF Nos. 35, 44, 81.) Plaintiff once again moves to proceed in forma pauperis in order to obtain the appointment of an expert witness. (ECF No. 106.)

The Court will separate Plaintiff's motion to proceed in forma pauperis from his request for the appointment of an expert witness. His motion to proceed in formapauperis will be denied because Plaintiff has already paid the filing fee in full.

Turning to Plaintiff's request for the appointment of an expert witness, pursuant to Federal Rule of Evidence 702, an expert witness may testify to help the trier of fact determine the evidence or a fact at issue. A court has full discretion to appoint an expert witness either by its own motion or by a party's motion. Fed. R. Evid. 706(a); McKinney v. Anderson, 924 F.2d 1500, 1510-11 (9th Cir. 1991), overruled on other grounds by Helling v. McKinney, 502 U.S. 903 (1991). Appointment of an expert witness may generally be appropriate when "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or decide a fact in issue." Levi v. Dir. of Corr., 2006 WL 845733, 2006 U.S. Dist. LEXIS 18795, at *2 (E.D. Cal. 2006) (citing Leford v. Sullivan, 105 F.3d 354, 358 (7th Cir. 1997)). Here, it is unclear whether Plaintiff seeks appointment of an expert on his own behalf or appointment of a neutral expert pursuant to Federal Rule of Evidence 706. "Reasonably construed, [Rule 706] does not contemplate the appointment of, and compensation for, an expert to aid one of the parties." Trimble v. City of Phoenix Police Dept., 2006 WL 778697, U.S. Dist. LEXIS 13061, at *6 (D. Ariz. 2006) (citation omitted). Accordingly, to the extent Plaintiff seeks appointment of an expert to help him present his case, his request is denied.

Plaintiff's request can also be reasonably construed as a request for appointment of a neutral expert witness under Federal Rule of Evidence 706. Where a party has filed a motion for appointment of a neutral expert under Rule 706, the court must provide a reasoned explanation of its ruling on the motion. Gorton v. Todd, 793 F. Supp. 2d. 1171, 1178 (E.D. Cal. 2011). Several factors guide the court's decision. First, and most importantly, the court must consider whether the opinion of a neutral expert will promote accurate fact finding. Id. at 1179. The court may also consider the ability of the indigent party to obtain an expert and the significance of the rights at stake in the case. Id. at 1182-84. Expert witnesses should not be appointed where they are not necessary or significantly useful for the trier of fact to comprehend a material issue in a case. Id. at 1181.

Here, Plaintiff claims that Defendant Harrington was deliberately indifferent to a serious risk of harm to Plaintiff from arsenic-contaminated water at KVSP. In order to prevail on an Eighth Amendment claim based on conditions of confinement, the Court must assess whether Plaintiff was deprived of the "minimal civilized measure of life's necessities." Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

"[A] prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer v. Brennan, 511 U.S. 825, 847 (1994). To state a claim, an inmate must allege facts to support that he was incarcerated under conditions posing a substantial risk of harm and that prison officials were "deliberately indifferent" to those risks. Farmer, 511 U.S. at 834; Frost, 152 F.3d at 1128. To adequately allege deliberate indifference, a plaintiff must set forth facts to support that a defendant knew of, but disregarded, an excessive risk to inmate safety. Farmer, 511 U.S. at 837. That is, "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id.

With respect to the first element of Plaintiff's claim, the Court notes that there is no evidence or medical opinion relating Plaintiff's symptoms to ingestion of arsenic-contaminated water. While Plaintiff attempted to locate an expert witness to correlate the two, he was apparently unsuccessful. (See ECF No. 107 at 3.) Therefore, a medical expert opinion would be necessary to establish that Plaintiff's symptoms are caused by and/or related to the arsenic-contaminated water. As indicated earlier, though, the Court will not appoint an independent expert to assist a party with the presentation of his or her case.

Insofar as Plaintiff seeks the appointment of an expert to opine on the risks associated with the concentration of arsenic found in KVSP's water, this request will also be denied as being, in effect, a guised request for the appointment of an expert to assist Plaintiff with his case. It is true that exposure to toxic substances can support aclaim under section 1983. See Wallis v. Baldwin, 70 F.3d 1074, 1076-77 (9th Cir. 1995) (exposure to asbestos). Here, Plaintiff alleges that the concentration of arsenic in the water at KVSP exceeds the EPA's standard and is, therefore, unsafe. But a violation of a regulatory standard does not presumptively violate the Eighth Amendment, and Plaintiff concedes that he lacks expert opinion that the water at KVSP did present a substantial risk of harm to his health. In this regard, Plaintiff is again attempting to secure the appointment of an expert witness to establish a necessary element of his case. Federal Rule of Evidence 706 does not exist to assist a party.

Perhaps of even greater significance here, in addition to establishing that his medical needs are related to unsafe levels of arsenic, plaintiff must also show that Defendant acted with deliberate indifference in exposing him to that unsafe condition. See Estelle, 429 U.S. at 104. Deliberate indifference is established only where the defendant subjectively "knows of and disregards an excessive risk to inmate health and safety." Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (internal citation omitted). Because the deliberate indifference analysis is subjective, expert testimony is neither necessary nor significantly useful in determining whether Defendant acted with deliberate indifference. Expert testimony would not be admissible on the question of Defendant's state of mind.

Also factoring into the Court's decision to deny Plaintiff's request is the fact that Plaintiff is not indigent. He has paid the filing fee in full and declared as recently as May 4, 2015, that he "is no longer indigent and can afford someone who have [sic] professional experience, training or knowledge in the area of arsenic or medicine to provide to provide a declaration to defeat Defendant's summary judgment motion (Pl.'s Decl. ¶ 5, ECF No. 95 at 3-4.)

Accordingly, Plaintiff's motion to proceed in forma pauperis and motion for appointment of an expert witness will be denied.

III. DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S SUR-REPLY

The Court next considers Defendant's motion to strike Plaintiff's "Notice ofErrata." Generally, no briefing on a motion is permitted...

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