United States District Court, D. Montana, Helena Division
Johnston, United States Magistrate Judge
Andrew Conner, an inmate proceeding in forma pauperis and
without counsel, has filed a Motion for Order for an
Examination. (Doc. 44.) Mr. Conner is incarcerated at Montana
State Prison and argues he is therefore unable to make
arrangements to be seen by an outside expert for his eyes,
asthma, and mental health condition. He seeks an examination
pursuant to Rule 35 of the Federal Rules of Civil Procedure.
allows the Court to require a party whose mental or physical
condition is in controversy to submit to a physical or mental
examination. Generally, this rule is utilized to require a
plaintiff complaining of a medical condition to submit to a
medical examination by a doctor of the defendants'
choosing. It does not give the Court the authority to provide
a party with an expert.
Rule 706 of the Federal Rules of Evidence, however, experts
may be appointed in the court's discretion to assist the
trier of fact in evaluating contradictory or complex
evidence. Walker v. Am. Home Shield Long Term Disability
Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) (independent
expert appointed to assist court in evaluating conflicting
evidence of elusive disease of unknown origin.); McKinney
v. Anderson, 924 F.2d 1500, 1510-11 (9th Cir. 1991)
(noting court's discretion to appoint expert in case
involving complex scientific issues concerning effects of
secondary cigarette smoke), vacated on other grounds,
Helling v. McKinney, 502 U.S. 903 (1991). But
appointment is not appropriate for the purpose of assisting a
litigating party for his own benefit. See Carranza v.
Fraas, 763 F.Supp.2d 113, 119-20 (D.D.C. 2011);
Pedraza v. Jones, 71 F.3d 194, 198 n. 5 (5th Cir.
Conner has not shown issues of requisite complexity requiring
appointment of an expert witness. He makes this request for
his own assistance, which is outside the scope of Rule 706.
The Court does not find the issues presented in this case to
be sufficiently complex, thereby necessitating an expert.
See Runningbird v. Weber, 198 Fed.Appx. 576 (8th
Cir. 2006) (no abuse of discretion in the court's failure
to appoint an expert on Native American Religion practices).
IT IS HEREBY ORDERED that Mr. Conner's Motion for Order