Kakowski v. Allison et al, No. 3:2021cv01675 - Document 60 (S.D. Cal. 2022)
Court Description: ORDER denying 53 Motion for Neutral Expert; and Order denying 54 Motion to Appoint Counsel. Signed by Magistrate Judge Jill L. Burkhardt on 6/27/2022. (All non-registered users served via U.S. Mail Service)(smy1)
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Kakowski v. Allison et al Doc. 60 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 BRIAN KAKOWSKI, Case No.: 21-cv-01675-JAH-JLB Plaintiff, 14 15 v. 16 KATHLEEN ALLISON, et al., 17 ORDER: (1) DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION FOR NEUTRAL EXPERT (ECF No. 53); AND Defendants. 18 19 (2) DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION TO APPOINT COUNSEL (ECF No. 54) 20 21 22 23 Plaintiff Brian Kakowski (“Plaintiff”), a state prisoner incarcerated at the Richard J. 24 Donovan Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se and 25 in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. (ECF Nos. 1, 26 29, 32.) Presently before the Court is Plaintiff’s motion for neutral expert and a renewed 27 motion to appoint counsel. (ECF Nos. 53, 54.) For the reasons set forth below, Plaintiff’s 28 motions are DENIED without prejudice. 1 21-cv-01675-JAH-JLB Dockets.Justia.com 1 I. BACKGROUND 2 A. 3 The following allegations are taken from the FAC, the operative complaint in this 4 Factual Background case: 5 In count one of the FAC, Plaintiff alleges that Defendants California Department of 6 Corrections and Rehabilitation (“CDCR”) Secretary Kathleen Allison, RJD Warden 7 Marcus Pollard, Plaintiff’s primary treating physician at RJD, Dr. Clayton, and 8 H. Moseley, the Chief Appeals Officer of CDCR, failed to protect him and were 9 deliberately indifferent to his health and safety in violation of equal protection and the 10 prohibition against cruel and unusual punishment under the Eighth and Fourteenth 11 Amendments. (ECF No. 32 at 6.) Plaintiff alleges these Defendants failed to enforce 12 California Code of Regulations, Title 15, § 3052(g), a copy of which he attaches to the 13 FAC, which provides: “No inmate shall be assigned to the food service area until medically 14 cleared to handle food.” (Id. at 4; ECF No. 32-1 at 9.) He claims that as a result of their 15 failure to enforce that regulation, inmates with contagious diseases are working in the 16 kitchens contaminating food, which “led to Plaintiff re-contracting Hepatitis-C.” (Id.) 17 Plaintiff alleges these Defendants are allowing their subordinates free reign with 18 little or no oversight to permit inmates to volunteer in the kitchens without medical 19 clearance, which is the moving force behind the ongoing constitutional violation. (Id.) He 20 alleges Defendant Pollard personally participated in the violation when Pollard, rather than 21 investigate his complaint, denied his inmate grievance on the issue by stating, in direct 22 violation of the California regulations, that “inmates are not precluded from holding a 23 position in culinary based on medical prognosis.” (Id. at 5; ECF No. 1 at 24.) Plaintiff 24 claims that, as a result, inmates on the high-risk medical yard are allowed to work in the 25 kitchens without being medically cleared as required by prison regulations, causing unsafe 26 and unsanitary conditions in the kitchens. (ECF No. 32 at 5.) 27 Plaintiff claims Defendant Moseley “made false claims and falsified documents 28 claiming chronos are up to date, everybody & everyone is medically cleared,” which 2 21-cv-01675-JAH-JLB 1 Plaintiff alleges is proven false by the declaration of a kitchen worker attached to the FAC 2 and other documents and declarations he can present, and by the lack of documentation in 3 possession of Defendants showing the regulations are being followed. (Id. at 6–7; ECF 4 No. 32-2 at 2–3.) He states that he told Dr. Clayton during one of their visits that 5 Dr. Clayton had a duty “to look into why inmates with AIDS & Hepatitis are not being 6 properly screened prior to being assigned to the kitchens here at RJD,” and that Dr. Clayton 7 was not following the regulations and not investigating the violations which have been 8 documented. (ECF No. 32 at 8.) 9 In count two of the FAC, Plaintiff claims Defendant Dr. Clayton was deliberately 10 indifferent to his need for medical treatment of Hepatitis-C in violation of the Eighth 11 Amendment which has resulted in liver damage. (Id. at 9.) Plaintiff alleges his requests 12 for Hepatitis-C treatment and Interferon were “met with Tums & Ibuprofen—and I’m told 13 to drink a lot of water.” (Id. at 8.) He alleges he requested Interferon as a treatment “or 14 whatever I thought he recommended—and all I was given—and still to this day are given 15 is Tums & Ibuprofen.” (Id. at 9.) He states that he has “been ignored which led me to be 16 rushed to the hospital in April 2021” with acute liver failure. (Id.) Plaintiff claims he has 17 documentation showing Dr. Clayton was aware that his failure to follow policies and 18 procedures at RJD exposed Plaintiff to being re-infected with Hepatitis-C. (Id. at 9–10.) 19 Plaintiff alleges that on December 27, 2021, as Dr. Clayton walked by, Plaintiff told 20 him that he was still having issues with Hepatitis-C treatment, that he could feel his liver 21 was not right because he was bloated and could not bend down at times, and would like to 22 avoid another trip to the hospital, but Dr. Clayton told him he was no longer his physician, 23 said: “I’m not in the business of helping people who are trying to sue me,” and walked 24 away. (Id. at 14.) Plaintiff claims Dr. Clayton ignored signs of liver failure reported by 25 Plaintiff, including dark brown urine, stomach pain, and back aches, but “time and time 26 again I was ignored.” (Id. at 10.) He claims he could have been treated with Interferon or 27 Ribavirin by Dr. Clayton for over a year before his liver failure. (Id.) 28 /// 3 21-cv-01675-JAH-JLB 1 Plaintiff seeks to hold Defendants Dr. S. Roberts, the Chief Medical Executive at 2 RJD, M. Glynn, the Chief Executive Officer of the California Correctional Health Care 3 Services (“CCHCS”), and S. Gates, the Chief of Policy and Risk Management for CCHCS, 4 “accountable for their inaction to my requests which have attributed to deliberate 5 indifference to my medical needs.” (Id. at 11.) He claims all three Defendants, along with 6 Defendant Secretary Allison, “are the policy makers with regard to” the actions of the 7 CCHCS and CDCR and became liable when they read and disregarded his “cry for help 8 through the grievance process.” (Id.) He contends that denial of treatment is a de facto 9 policy of RJD, CCHCS, and CDCR. (Id. at 13.) 10 Finally, Plaintiff claims his right to equal protection has been violated because his 11 cellmate is being treated with a synthetic heroin called Suboxone because he was a heroin 12 user, which allows him to have his Hepatitis treated with a drug called Harvoni, but 13 Plaintiff is not entitled to be prescribed Harvoni because he was never a heroin user and is 14 not prescribed Suboxone. (Id.) 15 B. 16 Plaintiff commenced this civil rights action on September 22, 2021, by filing a 17 complaint and a motion to proceed in forma pauperis. (ECF Nos. 1, 2.) Plaintiff thereafter 18 filed a motion to appoint counsel. (ECF No. 24.) On December 21, 2021, the Court granted 19 Plaintiff’s motion to proceed in forma pauperis, denied without prejudice his motion to 20 appoint counsel, and dismissed his complaint with leave to amend pursuant to 28 U.S.C. 21 §§ 1915(e)(2)(B) and 1915(A). (ECF No. 29.) Procedural Background 22 On January 12, 2022, Plaintiff filed a First Amended Complaint (“FAC”). (ECF No. 23 32.) After screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915(A), the Court 24 dismissed all of Plaintiff’s claims against all Defendants, except Plaintiff’s Eighth 25 Amendment claim against Pollard, Clayton, and Moseley for deliberate indifference to 26 Plaintiff’s serious medical needs. (ECF No. 33.) Defendants Clayton and Pollard have 27 filed an answer. (ECF Nos. 49, 51.) Defendant Moseley has not yet been served. On 28 4 21-cv-01675-JAH-JLB 1 May 20, 2022, the Court issued a Case Management Conference Order which regulates 2 discovery and other pretrial proceedings in this case. (ECF No. 50.) 3 Currently before the Court is Plaintiff’s motion for neutral expert and a renewed 4 motion to appoint counsel. (ECF Nos. 53, 54.) 5 II. 6 7 DISCUSSION A. Motion to Appoint Neutral Expert 1. Legal Standard 8 An expert witness may testify to help the trier of fact understand the evidence or 9 determine a fact in issue. Fed. R. Evid. 702. Under Federal Rule of Evidence 706, a court 10 may, on a party’s motion or on its own, appoint an expert witness. Fed. R. Evid. 706(a). 11 The decision whether to appoint a neutral expert is discretionary. See Claiborne v. Blauser, 12 934 F.3d 885, 901 n.7 (9th Cir. 2019) (citing McKinney v. Anderson, 924 F.2d 1500, 1511 13 (9th Cir. 1991) (holding that a district court has discretion to appoint an expert witness in 14 a prisoner civil rights case with complex scientific evidence)). Appointment of an expert 15 witness may be appropriate when “scientific, technical, or other specialized knowledge will 16 help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. 17 Evid. 702(a); Torbert v. Gore, No. 14cv2911 BEN (NLS), 2016 WL 3460262, at *2 (S.D. 18 Cal. June 23, 2016); see also Armstrong v. Brown, 768 F.3d 975, 987 (9th Cir. 2014) (“A 19 Rule 706 expert typically acts as an advisor to the court on complex scientific, medical, or 20 technical matters.”). 21 While the Court has the discretion to appoint an expert and to apportion costs, 22 including the apportionment of costs to one side, Fed. R. Evid. 706(c)(2); Ford ex rel. Ford 23 v. Long Beach Unified School Dist., 291 F.3d 1086, 1090 (9th Cir. 2002), Rule 706 is not 24 a means to avoid the in forma pauperis statute’s “prohibition against using public funds to 25 pay for the expenses of witnesses,” Manriquez v. Huchins, No. 1:09-CV-00456-LJO, 2012 26 WL 5880431, at *12 (E.D. Cal. Nov. 21, 2012), nor does Rule 706 “contemplate court 27 appointment and compensation of an expert witness as an advocate for one of the parties,” 28 5 21-cv-01675-JAH-JLB 1 Faletogo v. Moya, No. 12CV631 GPC WMC, 2013 WL 524037, at *2 (S.D. Cal. Feb. 12, 2 2013). 3 2. Discussion 4 Here, Plaintiff fails to explain how appointment of a neutral expert witness would 5 assist the Court in understanding the evidence or determining a fact in issue. This case is 6 still in the early discovery phase. No dispositive motions have been filed and no trial has 7 been set. (See ECF No. 50.) Therefore, there is no pending matter where the Court would 8 require the assistance of an expert witness. 9 Moreover, Plaintiff does not explain how this case involves scientific evidence or 10 complex issues. See McKinney, 924 F.2d at 1511 (appointment of an expert witness may 11 be appropriate if the action involves scientific evidence or complex issues). The simple 12 fact that Plaintiff is pursuing an Eighth Amendment claim for deliberate indifference to 13 serious medical needs does not necessitate the appointment of a medical expert. See, e.g., 14 Woods v. Carey, 488 F. App’x 194, 196 (9th Cir. 2012) (finding the district court did not 15 abuse its discretion in denying a prisoner’s request for appointment of a dental expert to 16 support a deliberate indifference to serious medical needs claim because there “were no 17 complex or scientific issues present in th[e] case, and an expert was not necessary to explain 18 to the jury the extent of [the plaintiff’s] pain and suffering as a result of his inability to 19 obtain dental treatment”); Sanders v. York, 446 F. App’x 40, 43 (9th Cir. 2011) (finding 20 the district court did not abuse its discretion in denying a prisoner’s request for an expert 21 to support his deliberate indifference to serious medical needs claim where the prisoner did 22 not demonstrate that “expert testimony would have been helpful, much less important or 23 necessary to explain complex scientific issues or evidence,” noting that “[e]xpert testimony 24 about the effects of the defendants’ alleged deliberate indifference was not necessary”); 25 Torbert v. Gore, No. 14cv2911 BEN (NLS), 2016 WL 3460262, at *2 (S.D. Cal. June 23, 26 2016) (noting that in the context of a deliberate indifference to serious medical needs claim 27 “the question of whether the prison officials displayed deliberate indifference to 28 6 21-cv-01675-JAH-JLB 1 [Plaintiff’s] serious medical needs [does] not demand that the jury consider probing, 2 complex questions concerning medical diagnosis and judgment” (citation omitted)). 3 4 Based on the foregoing, the Court DENIES without prejudice Plaintiff’s motion for appointment of neutral expert. 5 B. 6 Motion to Appoint Counsel 1. Legal Standard 7 The Constitution provides no right to appointment of counsel in a civil case unless 8 an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dep’t 9 of Soc. Servs., 452 U.S. 18, 25 (1981). However, under 28 U.S.C. § 1915(e)(1), courts are 10 granted discretion to appoint counsel for indigent persons under “exceptional 11 circumstances.” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). A 12 finding of exceptional circumstances demands at least “at least an evaluation of the 13 likelihood of the plaintiff’s success on the merits and an evaluation of the plaintiff’s ability 14 to articulate his claims ‘in light of the complexity of the legal issues involved.’” Id. 15 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 16 Only “rarely” will a federal court find a case to be so complex that it is appropriate 17 to appoint counsel for a civil litigant who faces no loss of liberty in the controversy at hand. 18 Williams v. Navarro, No. 3:18-cv-01318-DMS-RBM, 2021 WL 634752, at *2 (S.D. Cal. 19 Feb. 17, 2021). This includes civil rights litigation involving deliberate indifference to 20 medical care. See, e.g., Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (finding 21 the trial court did not abuse its discretion by refusing to appoint counsel for a pro se prisoner 22 alleging an Eighth Amendment deliberate indifference to serious medical need claim); cf 23 Tilei v. McGuinness, 642 F. App’x 719, 722 (9th Cir. 2016) (finding the appointment of 24 counsel warranted where the plaintiff’s deliberate indifference claim was “legally 25 complex” and “will turn on complex medical questions of competing treatment regimens 26 and causation, and likely require the testimony of expert witnesses,” the plaintiff is 27 “incapable of articulating that claim,” and the plaintiff’s complaint states a claim for relief). 28 /// 7 21-cv-01675-JAH-JLB 1 2. Discussion 2 Plaintiff renews his request for appointment of counsel on the following grounds: 3 (1) he is indigent and unable to afford counsel; (2) the issues in this case are complex; (3) 4 the case contains several legal claims against several defendants, along with medical issues 5 that may require expert testimony; (4) Plaintiff has demanded a jury trial; (5) Plaintiff lacks 6 the ability to investigate or subpoena things; and (6) there will be conflicting testimony and 7 possible credibility issues. (ECF No. 54 at 3.) 8 Here, there are no “exceptional circumstances” to justify appointment of counsel at 9 this time. Plaintiff’s arguments in support of appointment of counsel are typical of almost 10 every pro se prisoner civil rights plaintiff and alone are insufficient to satisfy the 11 “exceptional circumstances” standard. See, e.g., Thompson v. Paramo, No. 16cv951- 12 MMA (BGS), 2018 WL 4357993, at *1 (S.D. Cal. Sept. 13, 2018) (finding a pro se prisoner 13 civil rights plaintiff’s argument that his case is factually and legally complex, he has a 14 limited ability to investigate and present his case, he needs discovery, he is indigent, and 15 he lacks legal training to be circumstances that are typical of almost every pro se prisoner 16 civil rights plaintiff and alone are insufficient to demonstrate exceptional circumstances); 17 Jones v. Kuppinger, 13cv451-WBS (AC), 2015 WL 5522290, at *3 (E.D. Cal. Sept. 17, 18 2015) (“Circumstances common to most prisoners, such as a deficient general education, 19 lack of knowledge of the law, mental illness and disability, do not in themselves establish 20 exceptional circumstances warranting appointment of voluntary civil counsel.”); Taa v. 21 Chase Home Fin., LLC, No. 5:11-cv-00554 EJD, 2012 WL 507430, at *2 (N.D. Cal. Feb. 22 15, 2012) (noting that plaintiffs’ lack of legal training and poverty did not constitute 23 exceptional circumstances, as these are the types of difficulties many other litigants face in 24 proceeding pro se). 25 Plaintiff has thus far drafted and submitted several pleadings without the assistance 26 of counsel. In addition to the instant motion, Plaintiff has submitted a complaint (ECF 27 Nos. 1, 6, 10, 12, 14, 16, 18, 20, 22, 26, 28, 31), a motion to proceed in forma pauperis 28 (ECF No. 2), a prisoner trust fund account statement (ECF No. 4), two motions to appoint 8 21-cv-01675-JAH-JLB 1 counsel (ECF Nos. 24, 54), an amended complaint (ECF Nos. 32, 35, 39, 44), a motion to 2 have Defendant Moseley served with a copy of the complaint (ECF No. 42); a request for 3 Defendants to respond to service (ECF No. 43), and a motion for neutral expert (ECF No. 4 53). Upon review of his filings, it is apparent Plaintiff can articulate his claims and legal 5 arguments and advocate for himself. “When a pro se plaintiff shows he understands basic 6 litigation procedure and is able to articulate his claims, he does not demonstrate exceptional 7 circumstances to warrant appointing counsel.” Thompson, 2018 WL 4357993, at *1 (citing 8 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009)); see also LaMere v. Risley, 827 F.2d 9 622, 626 (9th Cir. 1987) (affirming a district court’s denial of request for appointment of 10 counsel where pleadings demonstrated the petitioner had “a good understanding of the 11 issues and the ability to present forcefully and coherently his contentions”). 12 Moreover, the claim and issues in this case are not complex. After screening of his 13 First Amended Complaint, Plaintiff is only proceeding with a “relatively straightforward” 14 Eighth Amendment claim that is similar to many cases that have been considered by this 15 court. Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015). Plaintiff claims he 16 lacks the “ability to investigate or subpoena things.” (ECF No. 54 at 3.) However, Plaintiff 17 is not precluded from conducting discovery and requesting documents in this case. (See 18 ECF Nos. 50, 57.) “If all that was required to establish successfully the complexity of the 19 relevant issues was a demonstration of the need for development of further facts, practically 20 all cases would involve complex issues.” Wilborn, 789 F.2d at 1331. 21 Plaintiff further claims there will be conflicting testimony, possible credibility issues 22 and a jury trial, and that he may require an expert. (ECF No. 54 at 3.) However, this case 23 is barely entering the discovery case. Therefore, these concerns do not present exceptional 24 circumstances warranting appointment of counsel at this time. See Leon v. Celaya, No. 20- 25 cv-00899-AJB-BGS, 2021 WL 533514, at *4 (S.D. Cal. Feb. 12, 2021); see also Eusse v. 26 Vitela, No. 3:13-cv-00916-BEN, 2015 WL 4404865, at *3 (S.D. Cal. July 16, 2015) 27 (finding the plaintiff’s concerns that “he has demanded a jury trial and he is ill-suited to 28 present his case or handle issues of conflicting testimony and credibility on his own . . . do 9 21-cv-01675-JAH-JLB 1 not present an exceptional circumstance warranting appointment of counsel [where the] 2 case is still in the discovery phase”); Morris v. Barr, No. 10-cv-2642-AJB BGS, 2011 WL 3 3859711, at *3 (S.D. Cal. Aug. 31, 2011) (finding “the potential need for experts, and [the 4 plaintiff’s] ability to obtain discovery and conduct depositions are not exceptional 5 circumstances warranting the appointment of counsel”). 6 Lastly, although Plaintiff’s Eighth Amendment claim survived initial screening 7 pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), it is too early to determine whether 8 Plaintiff’s claims will survive a motion for summary judgment. At this time, Plaintiff 9 offers no evidence other than his own assertions to support the claims in his First Amended 10 Complaint. See Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 1993) (finding that 11 the plaintiff failed to demonstrate likelihood of success on the merits where he offered “no 12 evidence other than his own assertions to support his claims”). Thus, this factor does not 13 support Plaintiff’s request for appointed counsel. See Garcia v. Smith, No. 10-cv1187- 14 AJB (RBB), 2012 WL 2499003, at *3 (S.D. Cal. June 27, 2012) (denying motion for 15 appointment of counsel when it was too early to determine whether any of the plaintiff’s 16 claims would survive a motion for summary judgment). 17 Based on the foregoing, the Court finds that Plaintiff has not established the 18 “exceptional circumstances” required for appointment of counsel at this time. Plaintiff has 19 not demonstrated a likelihood of success on the merits or that he is unable to articulate his 20 claims considering the complexity of the issues involved. Accordingly, Plaintiff’s renewed 21 motion for appointment of counsel is DENIED without prejudice. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 10 21-cv-01675-JAH-JLB 1 2 3 4 5 III. CONCLUSION For the foregoing reasons, Plaintiff’s motion for neutral expert and renewed motion to appoint counsel (ECF Nos. 53, 54) are DENIED without prejudice. IT IS SO ORDERED. Dated: June 27, 2022 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 21-cv-01675-JAH-JLB
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