United States District Court, D. Oregon
EVERETT J. SCOTT, Plaintiff,
JOHN MYRICK, et al., Defendants.
Yim You United States Magistrate Judge.
an inmate at the Snake River Correctional Institution, brings
this civil rights action pro se. Currently before
the court are several motions, which are addressed below.
Plaintiff's ''Motion for Preliminary Injunctive
Relief'' (ECF No. 29)
has filed what he has entitled a “Motion for
Preliminary Injunctive Relief.” However, in the motion,
plaintiff does not seek injunctive relief. Rather, he seeks
an order directing defendants to have him
“independently” examined by an
“expert” pulmonologist to help “prove
irrefutably past and present mistreatment.” Thus,
plaintiff is not seeking an examination for purposes of
administering medical treatment, but instead for the purpose
of proving the merits of his case. Accordingly, this court
treats plaintiff's motion as one for the appointment of
Fed.R.Evid. 706, the court has discretion to appoint an
expert where “scientific, technical, or other
specialized knowledge will assist the trier-of-fact to
understand the evidence or decide a fact in issue.”
Ledford v. Sullivan, 105 F.3d 354, 358-59 (7th Cir.
1997). Although the court may apportion the cost of an expert
to one side, where the costs would likely be apportioned to
the government, the court should exercise caution. Ford
ex rel. Ford v. Long Beach Unified School Dist., 291
F.3d 1086, 1090 (9th Cir. 2002); Ford v. Wildey,
Case No. 1:10 cv 01024 LJO SAB (PC), 2015 WL 1637794 at *3
(E.D. Cal. Apr. 13, 2015).
706 is not a means to avoid the in forma pauperis
statute and its prohibition against using public funds to pay
for the expenses of witnesses. See 28 U.S.C. § 1915(d);
Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993)
(' 1915 does not waive the requirement of the payment of
fees or expenses for witnesses in a ' 1983 prisoner civil
rights action). The Supreme Court has held that
“expenditure of public funds [on behalf of an indigent
litigant] is proper only when authorized by Congress.”
United States v. MacCollom, 426 U.S. 317, 321, 96
S.Ct. 2086, 2089, 48 L.Ed.2d 666 (1976). Thus, Rule 706 does
not contemplate court appointment and compensation of an
expert witness as an advocate for a party. Ford,
2015 WL 1637794 at *3 (citing Faletogo v. Moya, Case
No. 12cv631 GPC (WMC), 2013 WL 524037 at *2 (S.D. Cal. Feb.
has failed to demonstrate that the issues are so complicated
that at this time a court-appointed expert is necessary to
assist the court in understanding the evidence. Accordingly,
plaintiff's motion is denied with leave to refile at a
Plaintiff's ''Motion to Enter Documents Into
Plaintiff's Evidentiary Discovery File'' (ECF No.
40), ''Motion to Correct Discovery File
Record'' (ECF No. 45), ''Motion to Correct
Discovery Record and Enter Further Documents Into the
Record'' (ECF No. 57), and ''Motion to
Correct Discovery Record'' (ECF No. 62)
filed a second Motion to Enter Documents into Plaintiff's
Evidentiary Discovery File'' (ECF No. 40) wherein he
asks the court to enter various documents attached to the
motion into this case as evidence. Plaintiff also filed three
motions (ECF Nos. 45, 57, and 60) seeking to
''correct'' some of the discovery submitted.
Plaintiff's motions are granted to the extent that the
documents included therewith are construed as plaintiff's
additional exhibits for the purposes of this case and
Plaintiff's ''Motion for Contempt of
Court'' (ECF No. 44)
seeks an order pursuant to Fed.R.Civ.P. 37 finding the state
defendants in contempt for failure to disclose discovery.
Specifically, plaintiff contends the state defendants have
failed to provide plaintiff's Douglas County Medical
Records and his TRCI unit longs and incident reports from
units #4 and #5 from 2008 through 2015. Defendants respond
that they produced plaintiff's Douglas County Medical
Records and the incident reports, and were working through
the voluminous unit logs to provide the relevant documents.
provides that if a party fails to obey an order to provide
discovery, the court may issue further orders which may
include treating such failure as contempt. Fed.R.Civ.P.
37(b)(2)(A)(vii). A party should not, however, be held in
contempt if the party's actions ''appear to be
based on good faith and a reasonable interpretation of the
court's order.'' In re Dual-Deck Video
Cassette Recorder Antitrust Litigation, 10 F.3d 693, 695
(9th Cir. 1993) (quotation omitted). Defendants response
indicates they have already provided most of the discovery at
issue, and are working in good faith toward provided the
remaining unit logs. Accordingly, plaintiff's Motion for
Contempt of Court (ECF No. 44) is DENIED.
Plaintiff's ''Motion for Judgment as a Matter of
Law'' (ECF No. 54)
seeks an order granting judgment in his favor under
Fed.R.Civ.P. 50, on the basis that he Ahas given the court
multiple documents supporting his claims of the
Defendants['] Medical Indifference to him over a ...