United States District Court, D. Nevada
C. JONES UNITED STATES DISTRICT JUDGE
comes before this Court requesting appointment of counsel
pursuant to 28 U.S.C. § 1915(e)(1). (ECF No. 100.)
Plaintiff further moves for appointment of an expert witness.
(ECF Nos. 103.) For the following reasons, the Court denies
is a prisoner currently housed at the Lovelock Correctional
Center. Previously, Plaintiff had been housed at the High
Desert Springs Prison (HDSP), where the alleged conduct at
issue occurred. In the Second Amended Complaint (ECF No. 26),
Plaintiff alleged that Defendants Aranas, Cox, Neven,
Sablinca, and five John/Jane Doe Defendants had delayed and
deprived him of access to prescribed medication. After
partial dismissal and summary judgment, Plaintiff's sole
surviving cause of action is that such delay constituted
violation of the Eighth Amendment prohibition of cruel and
unusual punishment. Plaintiff pursues this cause of action
against Defendants Neven and Sablinca in their individual
capacities. The case is now scheduled for a jury trial. (ECF
Appointment of Counsel
requests appointment of counsel pursuant to 28 U.S.C.
1915(e)(1). Appointment of counsel in a civil case is
warranted only in “exceptional circumstances.”
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).
In determining whether to appoint counsel, “a court
must consider ‘the likelihood of success on the merits
as well as the ability of the petitioner to articulate his
claims pro se in light of the complexity of the
legal issues involved.'” Id. (quoting
Weygandt v. Lookc 718 F.2d 952, 954 (9th Cir.
1983)). The instant case does not present such exceptional
only remaining claim is one of deliberate indifference in
violation of the Eighth Amendment prohibition on cruel and
unusual punishment against two individual defendants.
Further, most of the legal issues, such as qualified immunity
and the objective prong of the deliberate indifference
analysis, have already been resolved. The remaining issues
are largely factual in nature and do not require legal
training to litigate. Indeed, should Plaintiff convince the
jury of the credibility of his allegations, it is likely that
Plaintiff will succeed on the merits of his claims.
Nevertheless, Plaintiff has successfully defended his case
through both a motion to dismiss and a motion for summary
judgment-all without counsel. Accordingly, although the
likelihood of success on the merits weighs toward appointing
counsel, the lack of complexity in the case and the
demonstrated ability of the pro se Plaintiff to litigate it
cut against a finding of exceptional circumstance warranting
appointment of counsel. Thus, Plaintiff's motion is
Appointment of an Expert Witness
to Fed.R.Evid. 706(a), “[O]n a party's motion . . .
the court may order the parties to show cause as to why
expert witnesses should not be appointed and . . . may
appoint any expert . . . of its own choosing.” The
determination of whether appointment of an expert is proper
is discretionary. Walker v. Am. Home Shield Long Term
Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999).
However, such appointments should be made “only in rare
and compelling circumstances” where a court is
“confronted with what it view[s] as an unusually
complex case.” Monolithic Power Sys., Inc. v. O2
Micro Int'l Ltd., 558 F.3d 1341, 1348 (Fed. Cir.
it does not appear that the case or the underlying facts are
particularly complex such as to require expert testimony. A
successful claim of deliberate indifference in violation of
the Eighth Amendment requires Plaintiff to satisfy an
objective prong, that there was a serious medical need and
that the denial of that need could result in the
“unnecessary and wanton infliction of pain, ”
Estelle v. Gamble, 429 U.S. 97, 104 (1976), and a
subjective prong-deliberate indifference by the named
defendant. Farmer v. Brennan, 511 U.S. 825, 835
(1994). In the instant case, the objective prong has been
deemed satisfied, (ECF No. 89 at 7:19-21), therefore trial
will focus on the subjective prong.
of the subjective prong requires a showing of “(a)
purposeful act or failure to respond to a prisoner's pain
or possible medical need and (b) harm caused by the
indifference.” Jett v. Penner, 439 F.3d 1091,
1096 (9th Cir. 2006) (citing McGuckin v. Smith, 974
F.2d 1050 (9th Cir. 1991)). Neither of these require expert
testimony. Plaintiff may demonstrate purposeful act or
failure to respond by detailing his interactions with the
Defendants. While expert medical testimony may be useful in
demonstrating that Plaintiff experienced harm due to lack of
access to medication, it is not necessary.
Plaintiff's requested compensatory damages of $150, 000
appear to be solely for the purpose of remedying past pain
and suffering, as there is no indication of past or future
medical expenses. The amount of compensation proper for past
pain and suffering is a determination for the jury and does
not require the advice of an expert. See Jones v.
Warmee,225 F.2d 258, 260 (9th Cir. 1955) (“It
does not require an expert to tell whether a person suffers.
The appearance of a person who suffers severely is sufficient
to manifest his condition to anyone of ordinary intelligence
and experience.” ...