Antonetti v. Skolnick et al, No. 3:2010cv00158 - Document 88 (D. Nev. 2013)
Court Description: ORDER DENYING 83 Motion to Reconsider. Signed by Magistrate Judge William G. Cobb on 2/13/2013. (Copies have been distributed pursuant to the NEF - DRM)
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Antonetti v. Skolnick et al Doc. 88 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 10 11 12 13 JOSEPH ANTONETTI, ) ) Plaintiff, ) ) vs. ) ) HOWARD SKOLNIK, et al., ) ) Defendants. ) ______________________________________) 3:10-cv-00158-LRH-WGC ORDER 14 15 Before the court is Plaintiff’s Motion to Reconsider (Doc. # 83)1 wherein Plaintiff asks the 16 court for reconsideration of its order (Doc. # 82) denying Plaintiff’s requests for the appointment of 17 counsel Doc. # 61) and for the appointment of one or more expert witnesses (Doc. # 62). Defendants 18 have opposed the motion. (Doc. # 85.) 19 I. LEGAL STANDARD: MOTION FOR RECONSIDERATION 20 While Plaintiff has titled his motion as one for reconsideration ( Doc. # 83 at 1), the court’s 21 orders were interlocutory in nature. The Federal Rules of Civil Procedure do not contain a provision 22 governing the review of interlocutory orders. However, “[a]s long as a district court has jurisdiction 23 over the case, then it possesses the inherent procedural power to reconsider, rescind, or modify an 24 interlocutory order for cause seen by it to be sufficient.” City of Los Angeles, Harbor Div. v. Santa 25 Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (internal quotation marks, citation, and emphasis 26 omitted). This inherent power is grounded “in the common law and is not abridged by the Federal 27 Rules of Civil Procedure.” Id. at 887. 28 1 Refers to court’s docket number. All page references are to the docketed page numbers unless otherwise noted. Dockets.Justia.com 1 Although other districts in the Ninth Circuit have adopted local rules governing reconsideration 2 of interlocutory orders, the District of Nevada has not. Rather, this district has used the standard for 3 a motion to alter or amend judgment under Rule 59 (e). See, e.g., Henry v. Rizzolo, No. 2:08-cv- 4 00635-PMP-GWF, 2010 WL 3636278, at * 1 (D. Nev. Sept. 10, 2010) (quoting Evans v. Inmate 5 Calling Solutions, No. 3:08-cv-0353-RCJ (VPC), 2010 WL 1727841, at * 1-2 (D. Nev. 2010)). 6 Accordingly, in the District of Nevada, “[a] motion for reconsideration must set forth the 7 following: (1) some valid reason why the court should revisit its prior order, and (2) facts or law of a 8 ‘strongly convincing nature’ in support of reversing the prior decision.” Henry, 2010 WL 3636278, 9 at * 1 (citing Frasure v. U.S., 256 F.Supp.2d 1180, 1183 (D. Nev. 2003)). Moreover, 10 “[r]econsideration is appropriate if the district court (1) is presented with newly discovered evidence, 11 (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening 12 change in controlling law.” Id. (citing U.S. Aviation Underwriters v. Wesair, LLC, No. 2:08-cv-00891- 13 PMP-LRL, 2010 WL 1462707 (D. Nev. April 12, 2010)) (internal citation and quotation marks 14 omitted). 15 While Plaintiff cites several cases in his memorandum and expresses what he believes to be 16 valid reasons supporting the appointment of counsel and an expert, Plaintiff has failed to submit any 17 newly discovered evidence or to provide any authority showing the court committed “clear error.” He 18 also has not identified any change in the controlling law. “A motion for reconsideration is not an 19 avenue to re-litigate the same issues and arguments upon which the court already has ruled.” Henry, 20 2010 WL 3636278, at *1 (citing In Re AgriBioTech, Inc., 319 B.R. 207, 209 (D. Nev. 2004)) (internal 21 quotation marks omitted). Nevertheless, the court will revisit the merits of Plaintiff’s two underlying motions.2 22 23 /// 24 /// 25 /// 26 2 27 28 Plaintiff’s Motion to Reconsider did not segregate his arguments relative to the court’s purported erroneous reasoning as it relates to his two separate requests, i.e., appointment of counsel and appointment of an expert. This amalgamation of arguments complicates the court’s ability to evaluate Plaintiff’s assertion that the court supposedly erred when it denied his two requests. 2 1 2 II. DISCUSSION A. Motion for Appointment of Counsel (Doc. # 61) 3 1. Legal Standard 4 A litigant in a civil rights action does not have a Sixth Amendment right to appointed counsel. 5 Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). In very limited circumstances, federal 6 courts are empowered to request an attorney to represent an indigent civil litigant. The circumstances 7 in which a court will grant such a request, however, are exceedingly rare, and the court will grant the 8 request under only extraordinary circumstances. United States v. 30.64 Acres of Land, 795 F.2d 796, 9 799-800 (9th Cir. 1986); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). 10 A finding of such extraordinary circumstances requires that the court evaluate both the 11 likelihood of Plaintiff’s success on the merits and the pro se litigant's ability to articulate his claims 12 in light of the complexity of the legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 13 1991) (citing Wilborn, 789 F.2d at 1331) (other citations omitted). Neither factor is controlling; both 14 must be viewed together in making the finding. Id. However, the district court exercises discretion in 15 making this finding. Id. 16 As the court explained to Plaintiff at the January 16, 2013 status conference (see Minutes, Doc. 17 # 82 at 3-4), absent demonstration of case complexity and a showing of a likelihood of success, courts 18 generally do not appoint counsel. It is the plaintiff’s burden to establish the existence of such 19 circumstances, and Plaintiff has not done so here. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 20 1997), withdrawn in part on unrelated grounds, 154 F.3d 952, 954 (9th Cir. 1998) (en banc). Because 21 the request for appointment of counsel (Doc. # 61) failed to satisfy this criteria, Plaintiff’s request was 22 denied at the hearing.3 The court will now again review Plaintiff’s request in light of his current 23 Motion to Reconsider. 24 2. Analysis 25 In his motion, Plaintiff now appears to argue that his claims, which include Eighth Amendment 26 medical care and conditions of confinement elements, as well as access to courts and First Amendment 27 3 28 It is noted Magistrate Judge Robert A. McQuaid, Jr., denied an earlier motion to appoint counsel filed by Plaintiff. (Doc. # 24.) 3 1 mail issues, are complex. The court disagrees. Plaintiff has not explained why these issues are complex 2 so as to justify the appointment of counsel. Rather, the court finds that Plaintiff still fails to 3 demonstrate the case is unduly complicated to the extent Plaintiff is unable to prosecute the case or 4 articulate his claims, nor has he demonstrated his likelihood of success on the merits, each of which 5 is a precondition to appointment of counsel.4 6 A multitude of causes of action asserted by Plaintiff were found to have asserted colorable 7 claims for relief and survived screening. (See Screening Order, Doc. # 6.) Certain of those claims were 8 eliminated on Defendants’ motion pursuant to this court’s Report and Recommendation (Doc. # 53), 9 as affirmed by the order of Senior Judge Edward C. Reed, Jr. (Doc. # 57). The remaining claims are 10 neither unduly complicated nor unnecessarily complex. Similarly, with respect to the other Terrell 11 factor, Plaintiff has not addressed, and therefore, has not convinced the court of a likelihood of success 12 on the merits of his claims. Thus, the court once again finds that the extraordinary circumstances 13 necessary for appointment of counsel to be absent. 14 While Plaintiff represents he has limited access to the law library, Plaintiff has shown an ability 15 to articulate and prosecute his claims, as demonstrated by the numerous motions he has filed in this 16 action in addition to his civil rights Complaint. (See, e.g., Docs. ## 34, 48, 52, 61, 62 and 83.) Plaintiff 17 is also no stranger to litigation. (See Antonetti v. Neven, 2:07-cv-00162-MMD-VCF; Antonetti v. 18 Neven, 2:08-cv-00120-KJD-VCF; Antonetti v. Neven, 2:09-cv-01323-PMP-GWF; Antonetti v. 19 Skolnick, 2:09-cv-02031-RLH-PAL; Antonetti v. Las Vegas, 2:13-cv-00064-RCJ-NJK; Antonetti v. 20 Neven, 3:11-cv-00451-RCJ-WGC; Antonetti v. Obama, 3:11-cv-00452-ECR-RAM; Antonetti v. 21 Obama, 3:11-cv-00548-LRH-WGC; Antonetti v. Neven, 3:11-cv-00157-ECR-WGC.) 22 The court also notes that there is, unfortunately, no pool of attorneys in Nevada to whom the 23 court can turn to appoint counsel in Section 1983 pro se prisoner litigation. The court does not have 24 the power “to make coercive appointments of counsel.” Mallard v. U. S. Dist. Ct., 490 U.S. 296, 310 25 26 27 28 4 Absent from Plaintiff’s original motion requesting counsel (Doc. # 62) and this request for reconsideration (Doc. # 83) were any medical records which might help substantiate Plaintiff’s contention his “claims involve complex issues of medical care.” (Doc. # 83 at 3). Nor were any documents submitted which might shed light on his conclusion that his conditions of confinement and First Amendment claims are complex. 4 1 (1989). This is part of the reason that the court can only appoint counsel under exceptional 2 circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009), cert. denied, 130 S.Ct. 1281 3 (2010). Even if those exceptional circumstances were present here, not having a pro bono panel in the 4 District of Nevada to whom the court might turn to seek counsel to represent Plaintiff, it would be 5 problematic for the court to secure an attorney willing to undertake pro bono representation of an 6 inmate Plaintiff who is confined in a remote location of northeastern Nevada. That is not to say that 7 difficulty could not be overcome, but when combined with this court’s observation that Plaintiff has 8 not demonstrated a likelihood of success or shown that his case is unduly complicated, the 9 complexities of appointment of counsel are compounded. 10 Therefore, the court, in its exercise of its discretion, again finds Plaintiff has failed to overcome 11 the admittedly formidable hurdles for appointment of counsel and denies this component of Plaintiff’s 12 motion for reconsideration. 13 B. Motion for Appointment of Expert (Doc. # 62) 14 1. Legal Standard 15 An expert witness may testify to help the trier of fact determine the evidence or a fact at issue. 16 Fed. R. Evid. 702. Federal Rule of Evidence 706 allows the district court on its own motion or on the 17 motion of any party to enter an order to show cause why an expert witness should not be appointed. 18 Fed. R. Evid. 706(a). Appointment of an expert witness may generally be appropriate when “scientific, 19 technical, or other specialized knowledge will help the trier of fact to understand the evidence or to 20 determine a fact in issue[.]” Fed. R. Evid. 702(a) (emphasis added). “ Expert witnesses should not be 21 appointed where they are not necessary or not significantly useful for the trier of fact to comprehend 22 a material issue in a case.” Johnson v. Dunnahoe, No. 1:08-cv-00640-LJO-DLB PC, 2013 WL 23 396009, at *2 (E.D. Cal. Jan. 31, 2013) (citing Gorton v. Todd, 793 F.Supp.2d 1171, 1181 (E.D. Cal. 24 2011)). The appointment of an unbiased expert is only appropriate if the expert’s opinion would 25 “promote accurate fact finding.” Gorton, 793 F.Supp.2d at 1179. 26 “The rule only allows a court to appoint a neutral expert.” Gilman v. Brown, No. CIV.S.-05- 27 830-LKK/GGH, 2011 WL 3163260, at *5 (E.D. Cal. 2011) (emphasis added) (citing In re High 28 Fructose Corn Syrup Antitrust Litigation, 295 F.3d 651, 655 (7th Cir. 2002)). The determination to 5 1 appoint an expert rests solely in the court’s discretion and is to be informed by such factors as the 2 complexity of the matters to be determined and the court’s need for a neutral, expert review. See 3 Ledford v. Sullivan, 105 F.3d 354, 358-59 (7th Cir. 1997). The rule does not provide for the 4 appointment of an expert to be an advocate for Plaintiff’s position. See Gorton, 793 F.Supp.2d at 1177 5 n. 6; see also id. at 1184 n. 11 (stating that appointment of an expert witness for a plaintiff’s “own 6 benefit . . . is not permitted under Rule 706 or 28 U.S.C. § 1915[.]”). 7 2. Discussion 8 Plaintiff’s underlying motion requesting the appointment of an expert was a terse two-page 9 document which made it difficult, at best, for the court to determine the basis for Plaintiff’s request. 10 (See Doc. # 62.) He seemed to suggest a lay person would not know or understand the applicable 11 standard of care, be able to determine how and whether the standard of care was deviated from, or 12 appreciate the effect it had on Plaintiff. (Id.) Thus, while not entirely clear, it appeared that Plaintiff 13 wanted the court to secure some expert(s) to: (1) discuss the standard of care in a prison environment; 14 (2) testify, in accordance with Plaintiff’s position, that the Nevada Department of Corrections (NDOC) 15 deviated from that standard; and (3) testify how this failure to adhere to the standard of care impacted 16 Plaintiff. The court perceives multiple problems with Plaintiff’s request, which will be discussed in 17 turn below. 18 First, Plaintiff really seems to be asking the court to appoint several experts, but he has not 19 clearly articulated the subject matter of testimony he seeks from these experts. While Plaintiff initially 20 indicates that he wants an expert or possibly several experts to testify regarding the standard of care 21 relative to his health issues, he also references expert testimony in the context of his confinement in 22 isolation, as well as his access to courts and First Amendment mail claims. Rather than specifying the 23 topics for expert testimony, Plaintiff simply makes reference to the general nature of his remaining 24 claims. Without further elaboration, the court will not put itself in the position of having to speculate 25 regarding the realm of expert testimony in this case. Moreover, it is not clear if Plaintiff is requesting 26 that a medical expert be appointed for the purposes of performing a medical examination, evaluation, 27 and treatment, but to the extent he is making such a request, the court is not permitted to make such 28 an order. See, e.g., Green v. Branson, 108 F.3d 1296, 1304 (10th Cir. 1997) (affirming denial of a 6 1 medical examination (albeit under Rule 35) where the plaintiff sought to have himself examined for 2 the purpose of treatment). 3 Second, even if Plaintiff clearly delineated his request for the appointment of expert(s), he has 4 made no suggestion as to whom these experts should be; nor has he indicated he has located any expert 5 who is willing to serve in this respect. Plaintiff has presumably left it to the court to track down 6 persons knowledgeable in vaguely defined areas of expertise, and the court is simply unwilling to 7 undertake this task. 8 Third, nowhere in his underlying motion or request for reconsideration does Plaintiff explain 9 who is going to absorb the costs and fees associated with the appointment of any expert in this case. 10 The appointed expert is entitled to reasonable compensation, and in a civil case the compensation is 11 “paid by the parties in such proportion and at such time as the court directs.” Fed. R. Evid. 706(b). 12 However, where, as here, one of the parties is indigent, the court may apportion all the costs to one 13 side. See McKinney v. Anderson, 924 F.3d 1500, 1510-11 (9th Cir. 1991), vacated and remanded on 14 other grounds in 503 U.S. 903 (1991) (reasoning that allowing court-appointed experts only when both 15 sides are able to pay their respective shares would hinder a district court from appointment an expert 16 witness, “even when the expert would significantly help the court.”). 17 Since Plaintiff has not indicated who will absorb the fees and costs associated with the 18 appointment of one or more experts, he presumably wants Defendants to incur these expenses. The 19 court is not persuaded this would be equitable, especially considering that Plaintiff is asking the court 20 to appoint several experts to testify in accordance with his position in this case and as discussed infra, 21 he has not established that such testimony would be of assistance to the fact finder. While it is true that 22 the District of Nevada, like the district court in Gorton, 793 F.Supp.2d at 1177, has a “non- 23 appropriated fund,” distributions from that fund may be made to reimburse out-of-pocket expenses 24 incurred by court-appointed attorneys. Since no attorney has been appointed for Plaintiff, this 25 provision is seemingly unavailable for the provision of expert witness fees in this case. “The 26 expenditure of public funds on behalf of an indigent litigant is proper only when authorized by 27 Congress.” Tedder v. Odel, 890 F.2d 210 (9th Cir. 1989). The in forma pauperis statute, 28 U.S.C. 28 § 1915, does not authorize the expenditure of public funds for witnesses.” Lal v. Felker, No. 2:07-cv7 1 2060 KJM EFB P, 2012 WL 3587786 (E.D. Cal. 2011) (citing Gorton, 793 F.Supp.2d at 1184 n.11). 2 Fourth, the court observes that Plaintiff’s request is not for a neutral expert under Rule 706. 3 Instead, he seeks the appointment of an advocate on his behalf. (See Doc. # 62 at 1, where Plaintiff 4 argues that the appointment of an expert would “avoid a wholly one-sided presentation of opinions on 5 the issues at trial.”) This is not permitted under Rule 706. This rule only affords the court discretion 6 to appoint a neutral expert. See Gilman, 2011 WL 3163260, at * 5 (citation omitted); see also Gorton 7 793 F.Supp.2d at 1177 n. 6, 1184 n. 11. As the Seventh Circuit pointed out in Brown v. U.S., 74 8 Fed.Appx. 611, 614-15 (7th Cir. 2003), “no civil litigant, even an indigent one, has a legal right” to 9 “compel the government to bear the cost and responsibility for hiring an expert witness to testify on 10 his behalf in order to establish a fundamental element of his case.” Id. (emphasis added) (also finding 11 that the provisions of Rule 35 would not provide the plaintiff a mechanism for appointment of an 12 expert). 13 Finally, and probably most importantly, Plaintiff has not addressed, let alone established, that 14 the appointment of any expert in this case would assist the trier of fact-a prerequisite to such an 15 appointment under the Federal Rules of Evidence. As discussed above, the determination to appoint 16 an expert rests solely in the court’s discretion and is to be informed by such factors as the complexity 17 of the matters to be determined and the court’s need for a neutral, expert review. See Ledford, 105 F.3d 18 at 358-59. In Ledford, the court was required to determine whether the appointment of an expert would 19 assist the trier of fact in determining whether the correctional officials were deliberately indifferent to 20 the inmate’s medical needs. The Seventh Circuit concluded that an expert would not be of assistance 21 in determining what is essentially a question of subjective action or intent. See id. at 359 (“Given the 22 particular factual issues in this case, determining deliberate indifference was not so complicated that 23 an expert was required to establish Ledford’s case.”). 24 Here, as in Ledford, deliberate indifference appears to predominate the alleged constitutional 25 violations asserted by Plaintiff, both as to his medical care and conditions of confinement claims. See 26 Farmer v. Brennan, 511 U.S. 825, 834 (1994); Wilson v. Seiter, 401 U.S. 294, 303 (1991). The 27 essentially inquiry in these claims is whether a particular defendant, subjectively knew of and 28 disregarded a serious risk to Plaintiff’s health or safety. Id. This will require the fact finder to focus 8 1 in on the conduct of the defendant-a task which is not complicated, nor would it be made easier with 2 the assistance of an expert. See Ledford, 105 F.3d at 359 (“[T]he question of whether the prison 3 officials displayed deliberate indifference toward Ledford’s serious medical needs did not demand that 4 the jury consider probing, complex questions concerning medical diagnosis and judgment.”) Plaintiff 5 seems to imply that a fact finder would need assistance in determining and applying the appropriate 6 standard of care, but that is relevant in a medical malpractice case, not in the deliberate indifference 7 context presented here. See id. (citation omitted) (“The test for deliberate indifference is not as 8 involved as that for medical malpractice, an objective inquiry that delves into reasonable standards of 9 medical care.”). 10 Nor does the court find that an expert would assist the trier of fact in determining Plaintiff’s 11 access to courts claim or his First Amendment mail claims. These claims are neither so complex nor 12 unduly complicated that the trier of fact would need assistance from an expert. 13 In sum, Plaintiff has not established the prerequisites that would enable the court to appoint 14 a neutral expert under Rule 706. Therefore, the court will exercise its discretion to deny Plaintiff’s 15 request for reconsideration of the court’s order denying the appointment of an expert. 16 III. CONCLUSION 17 Having failed to convince the court it should reverse its prior orders denying appointment of 18 counsel and appointment of an expert, and for the reasons stated at the January 16, 2013 hearing and 19 the reasons stated herein, Plaintiff’s Motion to Reconsider (Doc. # 83) is DENIED. 20 21 IT IS SO ORDERED. 22 DATED: February 13, 2013. 23 24 _____________________________________ WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE 25 26 27 28 9
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