United States District Court, D. Montana, Helena Division
L. Christensen, Chief Judge
pending are Mr. Belanus's Motion to be in Appropriate
Clothing for Court (Doc. 133); Rule 35 Motion for Experts
(Doc. 134); Motion for a Bench Trial and Jury Trial
(Bifurcate) (Doc. 135); Motion for Leave to File Under Seal
(Doc. 136); Motion to Hold a Hearing via Telephone (Doc.
137); Motion for Temporary Restraining Order and a Hearing
(Doc. 138); Motion for Limited Legal Assistance (Doc. 139);
Response for Sanctions (Doc. 141); Motion for Extension of
Time (Doc. 142); Motion for Clarification (Doc. 143); Rule
706 Motion for Experts (Doc. 147), and Motion for Funds to
Retain Experts (Doc. 148).
Motion to be in Appropriate Clothing for Court (Doc.
Court will allow Mr. Belanus to appear at trial in civilian
clothes but he must make arrangements with the prison to do
so. The Court has no means by which to provide clothing for
Motions for Experts
Rule 35 Motion for Experts (Doc. 134)
Belanus cites to Rule 35(a)(1) of the Federal Rules of Civil
Procedure for the proposition that the Court should provide
an expert witness as to his medical/mental condition. Rule 35
provides that the Court "may order a party whose mental
or physical condition-including blood group-is in controversy
to submit to a physical or mental examination by a suitably
licensed or certified examiner." Fed.R.Civ.P. 35(a)(1).
Thus, the Court may compel a party to submit to a physical or
mental examination. This rule does not provide that the Court
must provide an expert witness for any party. "Rule 35
does not allow for a physical examination of oneself."
Berg v. Prison Health Servs., 376 Fed.Appx. 723, 724
(9th Cir. 2010).
Rule 706 Motion for Experts (Doc. 147)
Court does have the discretion to appoint an expert pursuant
to Rule 706(a) of the Federal Rules of Evidence. In relevant
part, Rule 706 states that "[o]n a party's motion or
on its own, the court may order the parties to show cause why
expert witnesses should not be appointed ..."
Fed.R.Evid. 706(a); Walker v. American Home Shield Long
Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir.
1999). 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, 180 F.3d at 1071 (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. o/Corr., 2006 U.S.
Dist. LEXIS 18795, *2, 2006 WL 845733 (E.D. Cal. 2006)
Court has the discretion to appoint an expert and to
apportion costs, including the appointment of costs to one
side. Fed.R.Evid. 706; Ford ex rel. Ford v. Long Beach
Unified School Dist, 291 F.3d 1086, 1090 (9th Cir.
2002); Walker, 180 F.3d at 1071. But where the cost
would likely be apportioned to the government, the court
should exercise caution. Appointment 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)
Belanus has not shown issues of requisite complexity
requiring appointment of an expert witness to assist the
trier of fact. Rather, he seeks the appointment of an expert
to support his own arguments. That is not the function of a
neutral expert witness.
Belanus argues that Defendants are now presenting a
"never-before-mentioned" legal defense that Mr.
Belanus's injuries were not caused by the assault at LCDC
and a physical exam is the only remedy available to correct
this controversy. (Doc. 134 at 3-5.) Defendants have always
maintained that they were not the cause of any damage or
injury to Mr. Belanus. (Answer, Doc. 43 filed November 9,
2015.) This is not a new issue. Mr. Belanus would have always
had the burden to prove that his damages were caused by
Defendants' actions. This is an insufficient basis upon
which to appoint an expert. The motion will be denied.
Motion for Funds to Retain Experts (Doc. 148)
Belanus also seeks funds to retain experts in this case
because of his indigency. He cites no authority for such
action and the Court is unaware of any such authority to
provide funds to a litigant to retain an expert. As set forth
above, appointment of an expert is not appropriate for the
purpose of assisting a litigating party for his own benefit.
In addition, the discovery period in this matter ended on
April 18, 2016. (Scheduling Order, Doc. 45.) Thus, the time
for disclosure of witnesses, including expert witnesses has
motion for funds to retain an expert will be denied.
Motion for a Bench Trial and Jury Trial (Bifurcate) (Doc.
motion for a bench trial, Mr. Belanus requests that this case
be tried in two proceedings. First, he seeks a bench trial on
the issue of liability and then a trial by jury on the issue
of damages. The motion will be denied because Defendants have
not waived their right to a trial by jury and continue to
demand a trial by jury on all issues, including liability and
damages. Pursuant to Fed.R.Civ.P. 39(a)(1) a party may only
withdraw a previously asserted jury demand through an oral or
written stipulation by all parties. Mr. Belanus made a jury
demand when he filed his original complaint on July 9, 2012.
(Doc. 1.) Defendants made their jury demand in their Answer
filed November 9, 2015. (Doc. 43.) Defendants have not
consented to the withdrawal of the jury demand, and therefore
Mr. Belanus's motion must be denied.
Motion for Leave to File Under Seal (Doc. 136)
Belanus seeks to file his motion for temporary restraining
order, declaration in support of the motion for temporary
restraining order, declaration in support of motion for legal
assistance and motion to hold a hearing via telephone under
seal. The only basis for his motion is that "the matter
contained in these filings are best suited for only the
parties involved and this Honorable Court out of respect for
the proceedings." (Doc. 136.) Based upon other filings,
it appears that Mr. Belanus seeks to file these matters under