United States District Court, D. Montana, Helena Division
Johnston United States Magistrate Judge.
before the Court is Plaintiff Shane Burd's Motion to Ask
the Court to Appoint Counsel and Expert (Doc. 49) and
Defendant's Motion for Summary Judgment (Doc. 53). The
motion for appointment of counsel and an expert will be
denied. Due to issue regarding Mr. Burd's access to his
legal materials at the prison, the briefing on the motion for
summary judgment will be stayed.
MOTION FOR APPOINTMENT OF COUNSEL & EXPERT
Mr. Burd's second motion for the appointment of counsel.
His first motion (Doc. 19) was denied by Order dated May 22,
2017 (Doc. 43). In his current motion, Mr. Burd argues
that the need for expert testimony is essential because he is
indigent and cannot afford to hire an expert. He also argues
that the importance of expert testimony is one of the factors
that supports the appointment of counsel. He submits that
only a qualified person can explain his medical conditions to
a jury and the court because his physical issues are
confusing and conflicting and he is subject to questions by
Defendant's counsel that he is not qualified to answer.
He argues that appointment of an expert may avoid a
“wholly one-sided presentation of opinions on these
issues.” (Doc. 49.)
Burd brings his motion under Rule 706 of the Federal Rules of
Evidence. Under Rule 706, experts are properly 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). Appointment of an expert
witness may generally be appropriate when “scientific,
technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or decide a fact in
issue . . . ” Levi v. Dir. of Corr., 2006 U.S.
Dist. LEXIS 18795, *2, 2006 WL 845733 (E.D. Cal. 2006)
of an expert 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.
1995); Trimble v. City of Phoenix Police Dept., 2006
U.S. Dist. LEXIS 13061, *6, 2006 WL 778697 (D. Ariz. 2006)
Burd has not shown issues of requisite complexity requiring
appointment of an expert witness to assist the trier of fact.
To prevail on his Eighth Amendment deliberate indifference
claim, Mr. Burd must show that Defendant acted with
deliberate indifference to his serious medical needs. See
Estelle v. Gamble, 429 U.S. 97, 104 (1983). In the
context of such a claim, “the question of whether the
prison officials displayed deliberate indifference to
[Burd's] serious medical needs [does] not demand that the
jury consider probing, complex questions concerning medical
diagnosis and judgment.” Torbert v. Gore, 2016
WL 3460262, at *2 (quoting Levi, 2006 WL 845733, at *1).
Rather, the Court and, if necessary, the jury will need to
consider Dr. Kohut's subjective knowledge of any risks to
Mr. Burd's health. See Toguchi v. Chung, 391
F.3d 1051, 1057 (9th Cir. 2002).
the determination of whether Mr. Burd's medical needs are
sufficiently “serious” to amount to an Eighth
Amendment violation will depend on Mr. Burd's subjective
testimony regarding his conditions, the pain he suffers from,
and how his conditions impact his daily life. See
McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir.
1992), overruled on other grounds by WMX Techs., Inc. v.
Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)
(“The existence of an injury that a reasonable doctor
or patient would find important and worthy of comment or
treatment; the presence of a medical condition that
significantly affects an individual's daily activities;
or the existence of chronic and substantial pain are examples
of indications that a prisoner has a ‘serious' need
for medical treatment.”) The assistance of an expert
witness would be unnecessary under these circumstances.
Burd appears to make 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. In addition, as
Defendant points out, Mr. Burd's request is untimely.
Discovery in this matter has ended and the appointment of an
expert would require re-opening of discovery.
for the reasons set forth the May 22, 2017 Order, Mr. Burd
has not shown the exceptional circumstances to justify a
request for counsel. He has demonstrated his ability to
litigate this matter without counsel and he has not yet shown
a likelihood of success on the merits.
motion for appointment of an expert and for appointment of
counsel will be denied.
MOTION FOR SUMMARY JUDGMENT
filed a motion for summary judgment on June 29, 2017. (Doc.
53.) By Notice filed July 12, 2017, counsel for Defendant
advised the Court that Mr. Burd's service copy of the
motion for summary judgment which was sent to Montana State
Prison (MSP) was returned in the mail with a notation that
“inmate no longer here.” (Doc. 60.) Court mail
sent to Mr. Burd at MSP on June 28, 2017, was returned to the
Court as undeliverable with the same notation on July 11,
2017. (Doc. 59.) Counsel is working with staff at MSP to
resolve this issue because Mr. Burd is still at MSP but has
been placed on a “Behavior Management Plan” since
June 24, 2017, which has hindered his access to his legal
materials. Counsel asks that the briefing schedule on the
motion for summary judgment be vacated and a date set for a
is not even clear that Mr. Burd has received a copy of the
motion for summary judgment, Defendant's request will be
granted. The parties will be required to file a status report
regarding Mr. Burd's access to his legal materials within
thirty days of the date of this Order. Once Mr. Burd has
access to his legal materials, the ...